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

LAW INTELLIGENCE.
COURT OF CHANCERY, July 21.
THE ATTORNEY-GENERAL V. GIBBS.
This was an appeal from the Vice-Chancellor K. Bs uce.
The information was filed at the instance of Will. Lam
Frederick Rock and others, inhabitants of the pari all of
St. Stephen's, Walbrook, in the city of London, to. com-
pel the defendant, Mr. Alderman Gibbs, to ascot .n t for
the moneys paid to him, or that had come into his. ha nds
since the year 1823, as perpetual churchwarden of • that
parish. The information also prayed the appointe Sent
of a receiver, and that Gibbs be removed from his c ffice
of trustee of the parish property. When the info ma-
tion came before the Master of the Rolls, his Lord ship
directed a reference to the Master, to inquire whai ; sums
of money had been received by Alderman Gibb: from
1823 to 1843, and to allow as against the so ams so
received all payments and disbursements on a_cec.otniant
re-
e-
the parish. In June, 1846, the Master ra
port, by which it appeared that Alderman d
aGibba had
paid in that period 17,1361., and
ofits
from, had that he a
received 12,778/. in rents and pr
parochial estates. A sum of money had. also
been received on account of rates, but on the whole
balance of the account 5921. appeared to be due to
Gibbs. A larger sum had been claimed by Gibbs, but
the Master disallowed 610 l
. which had been paid in costs.
After this result of the account-taking, the r elators
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 Pelly Atkins, the aldeinnan's
co-church warden.
Mr. LLOYD and Mr. HUMPHREYS, for the defirndant,
now argued that there was no just ground for sue h a de-
cision with respect to the costs. The informati on had
failed in ail it sought to establish; the relators he. I 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 ail 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 elsewhetes.
The LORD CHANCELLOR said peremptorily, %hat it was
time it should be distinctly understood tb..est no case
could stand over in that court in consequo',lce of the ab-
sence of counsel.
iillr..PATF&Alien con tended that the whole of the pro-
had done a service to the parsish,loy the Course'tli'ey hqui
adopted. The defendant in hit, 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 for the payment of costs that the
relators had 'not succeeded in establishing their charges
against the defendant, for it 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
therefo-re affirmed the order of the Court below, and dis-
missed. the appeal with costs.

ASSIZE INTELLIGENCE.
NORFOLK ClRCUlT.—Cambridge, July 20.
REGINA V. BEDWELL.-JUDG3IENT.
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 1/. 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, hat his
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 been 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 circumstandes 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-
lions), the offence for which the defendant is indicted
is the disobedience of the order of the justices, and
the introductory facts are only alleged with 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
I
given on oath be sufficient, has not been decided
believe ; but I have always thought that it
would,asbe
sufficient, and that in a special plea by a •
iustieeto an
action of trespass, it would be enough to state that a
plaintiff
was was duly made and published, and that the
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 informat ion 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, far the rate is alleged to have been duly made, and
no case
of
sehas been cited, nor can I find any, to show that the
order a justice is not valid if founded on an informa-
tion which does show
en t jurisdiction merely because the
information is opthe objection of informality in
making a mixed
galleood,
law and fact. The first
count, therefore, is g
jection. The second was, as far as it relates to this ob-
tlattt does not appear that the
churchwardens are authorised to receive and collect the
rate when they demanded it I think it is sufficient if
they were so when the rate was• refused, for that is the
offence. The third objection was
it
isat the averment of
the warrant. was defective, because
without
stated that it was
ant
wountulsdtatt)an
" recited as therein recited,"
g what was
recited; but enough of the warrant
out setting forth the recital. Then, also, it
e stated.w
that the warrant was not averred to, be addressed objected
that
one; but I think that it is so averred with
sufficient
'"ny meta
clearness. Another objection was that the u warrant was
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-
voura ble 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
13,",why it should be so in an indictment or an order;
"nu I think it is enough to set out the substance cor-
TtlY• There are two more objections—one that the
church
order nrchrate is not averred to have been in force when the
was made • the other that the warrant was with-
out date. As to •th
first, it averred that the rate con-
tinued in force at the • time. of the indictment, and that
the justices found thee portion of the rate assessed on the
defendant to be due to
which I think is quite
suesc‘h.urchwardens' complainants,
date of the order is immaterial. ,i en As to
s to the second, the
of commitment in which it is This is not a warrant
time when imprisonment is tnecessary to describe the
.reasons I think that the judgment ought
For these
oug,ht to be arrested.
At the conclusion of this address,
Mr. Justice PATTESON inquired of
whether he was in a situation to pay the coats the defendant
prison, for, added he, if that be so, shall cont en of the
self with ordering you to enter into recognizancett my_
pear at the ensuing assizes to receive sentence. 43 up.
The defendant—My Lord, 1 have not got a shilling to
bless myself with ; and as the thing has been hanging
over my head for two years I would prefer that your