The Sun.
London, England, 1847-07-22 00:00:00

LAW INTELLIGENCE.
COURT OF CHAIVCERY, July 21.
THE ATTORNEY-GENERAL V. GIBBS.

This was an appeal from the Vice-Chancellor K. Bruce.
The information was filed at the instance of William
Frederick Rock and others, inhabitants of the parish of
St. Stephen's, Walbrook, in the city Of London, to com-
pel the defendant, Mr. Alderman Gibbs, to account for
the moneys paid to him, or that had come into his hands
since the year 1823, as perpetual churchwarden of that
parish. the information also prayed the appointment
of a receiver, and that Gibbs be removed from his office
of trustee of the parish property. When the informa-
tion came before the Master of the Rolls, his Lordship
• directed a reference to the Master, to inquire what sums
of money had been received by Alderman Gibbs from
4823 to 1843, and to allow as against the sums So
received all payments and disbursements on account of
the parish. In June, 1846, the Master made his re-
port, by which it appeared that Alderman Gibbs had
paid, in that period 17,1361., and that he had
received 12,778/. in rents and profits from the
parochial estates. A sum of money had also
been received on account of rates, but on the whole
'oalance of the account 592/. appeared to he due to
Gibbs. A larger sum had been claimed by Gibbs, but
the Master disallowed 610/. which had been paid in costs.
After this result of the account-taking, the relators
abandoned any further proceedings; but on the matter
coming before the Vice-Chancellor on further directions,
his Honour ordered the costs of all the members of the
select vestry who had been made co-defendants, with the
exception of those of John Melly Atkins, the alderman's
co-churchwarden.
Mr. LLOYD and Mr. HUMPHREYS, for the defendant,
now argued that there was no just ground for such a de-
cision with respect to the costs. The information had
fv.iled in all it sought to establish; the relators had aban-
doned all claim to relief. They even refused to ask that
the defendant might be removed, and it seemed very hard
under such circumstances to compel him to pay all the
costs of so much fruitless litigation.
Mr. BATES, on the other side, hoped his Lordship
would allow the appeal to stand over for a short time, as
his leader Mr. Swanston was engaged elsewhere.
The LORD CHANCELLOR said peremptorily, that it was
time it should be distinctly understood that no case
could stand over in that court in consequence of the ab-
vence of counsel.
Mr. BATES then contended that the whole of the pro-
ceedings had been caused by the neglect of the de-
fendant in rendering his account, and that the relators
had done a service to the parish, by the course they had
adopted. The defendant in his answer denied that he
was bound to account to any one, except the members of
the select vestry.
His LORDSHIP saw no reason to be dissatisfied with
the decision of the Vice-Chancellor. The defendant
had by his refusal to account or give any explanation
respecting the moneys in his hand, given rise to the
whole of the litigation. It was true that instead of
being a debtor of the parish he turned out to be a credi-
tor, but that fact could not be ascertained until the
account was taken, and any taking of such account the
defendant had pertinaciously resisted. It was no answer,
therefore, to the order fur the payment of costs that the
relators had not succeeded in establishing their charges
against the defendant, for if he had done his duty, by
accounting when called on to do so, these charges in all
probability would not have been made. His Lordship
therefore affirmed the order of the Court below, and dis-
missed the appeal with costs.

ASSIZE INTELLIGENCE.

NORFOLK ClRCUlT.—Cambridge, July 20.

REGINA V. BEDWELL.-JUDGMENT.

In the course of the present assize,
Mr. Justice PATTESON delivered the judgment of Mr.
Baron Parke in this case, which was an indictment
against the defendant for disobedience of an order of
two justices under the statute 53 George 111., chap. 127,
for the payment of 16s. assessed upon the defendant
for church-rate in St. Botolph parish, in this town,
together with 11. 12s. 3d. costs thereon. The case
was tried by Mr. Baron Parke at the Spring
Assizes for 1845, and judgment deferred, the de-
fendant having been found guilty subject to certain
points which were taken in the course of the trial, which
it was then arranged should be fully argued in town be-
fore the Learned Baron. Mr. O'Malley was after-
wards heard in support of these points, and Mr. Couch
in opposition thereto, and, further time having been
taken to consider the questions then submitted to
him and Mr. Baron Parke, Mr. Justice Patteson
now proceeded to pronounce the decision to which
his Learned Brother had arrived. The indictment
contained three counts, and with reference to the second
and third the opinion of the Learned Baron was,
that the defendant was entitled to a verdict on questions
which were merely technical; but with regard to the
first count, he thought that the verdict of guilty ought
to stand. It had been objected, in the first place, that this
count was bad, inasmuch as it only alleged that the rate
in question had been duly made, and allowed as by law
required, and that the defendant had keen duly rated
therein at the sum of 165., whereas it ought to have gone
on to set forth the facts which by law constituted a
legal rate and rating. The general rule was undisputed,
that the facts and circumstances constituting the offence
ought to be averred in an indictment, for, otherwise,
the law resulting from those facts would be a question
for the jury, but here there were two answers to this
objection. In the first place, there was a distinction
between the allegation of facts which constituted the
offence, and those which ought to be averred by way
of inducement, in which latter case a more general alle-
gation is sufficient. In the present case (proceeded the
Learned Judge) after quoting and distinguishing several
cases. (to which express reference may be deemed super-
flous), the offence for which the defendant 15 indicted
is the disobedience of the order of the justices. and
the introductory facts are only alleged Ath the view of
showing that that order had been made by parties having
- a jurisdiction so to do, and that it was .consequently
obligatory on the defendant. These facts are, there-
fore, mere matter of inducement; but the other portions
of the count show that the justices had jurisdiction to
make the order; for it then appears that the informa-
tion was sufficient, and was given to them by com-
petent persons, these persons being the then church-
wardens, whose duty alone it is to collect and receive
the unpaid church-rates. They alone can sue for
them in the ecclesiastical courts, and their information to
the justices gives them jurisdiction. The words of the
7th and Bth of the statute, taken in the ordinary sense,
make the fact of a rate being duly imposed on a party,
and unpaid by him, conditions precedent to give the jus-
tices jurisdiction to enforce the payment of an order ;
but the proviso that the justices are to examine
upon oath into the merits of the complaints, and
the power of appeal to the sessions, lead to the in-
ference that they are not conditions precedent, and
that the information on oath that a rate is duly made in
which the party is rated and of his refusal to pay, is
enough, if supported by sufficient evidence, of which the
justices are to judge, to give them power to decide
and make an order for the payment, so that the order
when made would be valid, and could be enforced
whether or not there was de facto a proper rate and
demand, and refusal. This is the case generally speak-
ing where the justices act judicially. The case of a
poor-rate under 43 Elizabeth, chap. 2, sect. 4, is not the
same, for the words of that statute differ. There the
validity of the rate is essential to the power of the
jurisdiction of the parties to issue a distress warrant,
so that if the rate has not been duly published, or the
party proceeded against be not an occupier within
the parish, the warrant is unauthorised, and the
justice is liable to an action of trespass. Whether
the fact of a demand on, and refusal by the occupier,
is essential to the jurisdiction of the justice to issue
his warrant, or his decision on the evidence before him
given on oath be sufficient, has not been decided, as I
believe ; but I have always thought that it would be
sufficient, and that in a special plea by a justice to an
action of trespass, it would be enough to state that a
rate was duly made and published, and that the plaintiff
was an occupier and rated, and that there was a
complaint on oath by the overseer that he did
not pay on demand, and that that fact, was proved to
the satisfaction of the justice. I think that in this
ase, if there was a sufficient information on oath of a
church rate on which the defendant was assessed, and of
the demand and refusal by him, the justices had juris-
diction and the order was valid; for why are they to
inquire into the merits of the case and adjudicate on
them unless their adjudication is to be binding, especially
when it may be made the subject of appeal? If this
be SO, then the information is sufficient, as averred in the
first count. It shows that the magistrates had jurisdic-
tion, fir the rate is alleged to have been duly made, and
no case
has been cited, nor can I find any, to show that the
order of ajustice- not valid founded if on an informa-
tien which does show jurisdiction merely because the
information is open to the objection of informality in
making a mixed allegation of law and fact. The first
count, therefore, is good, se far as it relates to .his ob-
jection. The secondwa-othat it does not appear that the
churchwardensyardeeamusinhsdertTeitd to receive and collect the
rate when the
Irtehfeinskedi,t
they were so when the rate was refused, ieisntthief
fiosr s ut
that offence. The third objection
.that the averment of
the warrant was defective, becawumistehioteits stated that it was
" recited as therein recited," stating what was
recited; but enough of the warrant would be l?te stated with-
outoected
dbj
setting forth the recital. Then, also,
that the warrant was not averred to be ;ddrwesasBe
one; but I think that it is so averred with auk iseny
clearness. Another objection was that the warrante wasnt
not averred to have been served a reasonable time before
the day of appearance; but it must be assumed that the
justices satisfied themselves on that point, otherwise they
would have acted unjustly in making the order in the
absence of the party, and the intendment is always fa-
vourable to the validity of an order. Another objection
was, that the order should be set out verbatim according
to the tenor. There are precedents both ways. But as
it is not necessary in an action on a judgment, I do not
tee why it should be so in an indictment or an order;
and I think it is enough to set out the substance cor-
rtetly. There are two more objections—one that the
churchrc,h rate is not averred to have been in force when the
v
rue was made • the other that the warrant was with-
out date. As to 'the first, it is averred that the rate con-
tinued in force atd the time of the indictment, and that
the justices found the of the rate assessed on the
defendant to be duaeiteto the churchwardens' complainants,
which I think is
sufficient. As to the second, the
date of the order immaterial. This of commitment in which it Is necessary:iston not
sac
ri
b e warrant
the
fine when imprisonment is to commence. For these
reasons I think that the judgment
ought to be arrested.
At the conclusion of this A
Mr. Justice PATTESON in uirsd
ci of the defendant
whether he was in a situation to pay
shtharl costs of the
prison, for, added he, if that be so, content my-
self with ordering you to enter into recognizance to ap-
pear at the ensuing assizes to receive sentence
The defendant—My Lord, I have not got ;shilling to
bless myself with ; and as the thing has been hanging
over my head for two yearn I would prefer that pm