The Sun.
London, England, 1812-07-20 00:00:00

LAW REPORT.;

COURT Or KING'S BENCII,,JuLY 16.

A. MACKENZ.IE, ESQ. -Ad-AIN,ST
.0.• JENKINSON,

ESQ., M.T.

This was an action -Upon a bill of exchange for
10001: for the value of Spanish'sheep sold by the
plaintiff to the -defendant;

• Mr. GAiinow, in his opening'i insisted that the
defendant *as precluded in this action from-going
into any; question of warranty or unsoundness of
the sheep, which must be tried in.a cross action.

Lord ELLEkBOROUGH was of the saung opinion,
as the warranty was • denied, and it was admitted
by the defendant's Counsel that the allegect un-
soundness was wholly unknown to the plaint-ifl; at
the time of sale.

Verdkt for the pl.u►intiff 105'2/ and the question
of warrinty referred to Mr. Gazelee.

~LINCOLN ASSIZES.

WEBSTER ON THE DEMISE OF RIDGA*RD AND OTHERS
V. ELLISON AND OTHERS.
This was an action which had excited much
interest among.. the members of dissenting religious
persuasions. It was at the instance of a Presby-
terian society, Who claimed certain lands and pre-
mises at East Kirkstead, Woodhall, Timberland,
Langton, and Martin, in this county, and what
they called a " messuage," but which was proved
on the trial to be nothing less than the parish
church of East Kirkstead, to.which they set up a
claim under the following circumstances. The
proprietor and-Lord'of the Manor of Kirkstead,'
was formerly a gentleman of a respectable family
named Disney, who, being a Dissenter from ,the
Established Church, chose to have his religious
duties guided by a niinisses of his own persuasion,
and accordingly he appointed a Presbyterian Mi-
nister, for a stipend of thirty pounds a year, to
perform divine service in the chapel of the dona-
tive of Kirkstead. And after a time, that .be tes
nets Which he professed might not want uphold-
ing in his parish, he settled certain lands upon five
persons (Dissenters) in trust, that they should
apply the rentsand profits of thesaine to the main-
tenance of a Presbyterian Minister at Kirkstead,
so long as-the indulgences. to Dissenters should be
continued in the State. This conveyance was made
in the year _1720: and by the will of Mr.. Disney,
in 1732; he. confirmed the grant aboVe recited and-
its uses ; . and, in addition, bequeathed to, the said
trustet. " the use of the chapel and chapel
ground,'" fOr the same porpOses. In case of death
or alienation, on the part of the Dissenting Mi-
nister,' the Trustees were to nominate two others
for the office and its einoluments, who were tb be
presented to the .cord of the Manor, who was to
chuse. and appoint one Of them .; or in case 'of his
neglect or refusal, were themselves to appoint.---
New Trustees and new Ministers continued to be
appointed under the decd, unLii-the year -1792,
'whoa Mr. DisneysFytch, grandsOn of the grantor,
sold the manor and estates of Kirkstead to. Rich-
ard Ellison, Esq. who, (with his tenants) is the
defendant in this action ; and the propetty was
conveyed for his absolute useswith the exception
of the particularlands appropriated by title deed of
1720. •
Mr. Ellison, in the exercise of the right which
he eonceived.had devolved upon him by his. pur-
chase
appoint for the performance of religions ser-
vice at Kirkstead, notaS Presbyterian Minister, hut'
a Clergyman of the Establishment of which he
himself was a member, to whom he appropriated
the stipend of thirty pounds a year originally di-
rected as a provision.
It was to recover-the property so diverted from
the uses in contemplation of the grantor, that this
action was brought and amorgst the property
was specified a messuage (the chapel) and ground
abOut it.
The proof of the plaintiffs case lay chiefly in
the deed of 1720, and the will of 1732, which
were produced and read.
Mr. CLARKE, Mr. SCrjeant VAUMHAN, and Mr.
COPLEY, were retained by the plaintiffs,
Mr. REEDER, who (with Mr. DENMAN) was
Counsel for the defendants, in a remarkably able
address to the Jury, stated, that bis client Mr. El-
lison's object in defendingithis action, was not his
own advantage, nor was it of any importance to
him, as an individual, what the resultlof it might
be, beyond that interestwhich bend all men took
in the protection of the Church of which they
were members. The produce of the lands sought
to be recovered in the action, was regularly paid
to a Minister; and the only question was, whe-
ther that Minister should be a Clergyman of the
Church of England,. or. a Preacher of a Dissent-
ing connection. If Mr. Ellison was wrong, it
was from" an error in judgment he had- acted, not ;
being lawyer, or competent to a strict determi-
dation of legal right. He had thought, that not
the lands fuemselvcs, as .lands, werereserved;-but
only a security for thirty pounds a year; and. that.
sum he had regularly paid to a Clergyman whom
he had appointed. The Learned - Counsel pro-
Ceeded to state, daft the deed under which the
plaintiffs claimed was vitiated and void,-as to this
action, by. the circumstance of its provisions hav-
ing been departed from, particularly-as to the ap-
pointment of trustees on lapse by death. - It was;
directed that when two out of five were dead, the
remaining three-shottld appoint two others : but'.
this had not been attended to,—for in oneinstance
of new appointment'which had been- adduced by
the plaintiffs in their case, there was only one stn.--;
viving trustee, who consequently had all the pa-
tronage, The will Confirming the settlement aisoS
gave what it was impossible it should Or could
give ; for he would prove that the chapel was the'
parish church. of Kirkstead, where there was none
other; and it was impossible fiat any piswer on
earth, except that of an Act of Parliament, to di-
Yert, or pervert, as in this case which -he said
without meaning offence. to a respectable. body)
t
that ,which was consecrated and dedicatedo the
Church of England, to any other worship. It was
not enough, and was wholly futile, to say that: it
was not a parish church because the Ordinary had
no authority over it, and.the /3i.shop did not cite
its Minister to his Visitation : it was a donative,
and therefore exempt from that controul : but the