The Sun.
London, England, 1840-11-23 00:00:00

he had already stated, the defendant was entitled to his

discharge.
Mr. Hill was about to address the Court, when their
Lordships consulted together as to the mode of proceed-
and, after some little discussion, it was
ing in the case ;
settled that thd course pursued hi the case of the Canadian
prisoners, should be adopted as a precedent to be followed
in all future similar cases—viz., that all the Counsel for
the prisoner should be heard, then all the Counsel in sup-
port of the return ; and that one Counsel for the prisoner
should be heard in reply.
Mr. M. D. HILL would take the objections in the same
order as the Attorney-General had done. And, first, he
contended that the certificate ought to run in the name of
the Archbishop. It was quite clear that unless the 55th
George 111. made some alteration in the law on the sub-
ject the certificate must run in the name of the Archbishop.
The ATTORNEY-GENERAL said that he had just been in-
formed case
dischargedof the
de-
fendant thhaatdinbetQueen v. Jones," the
by the Court OR the very
ground that the certificate had run in the name cf the Sur-
rogate instead of the Bishop.
Lord DEN MAN said the case had not yet been reported.
He recollected the prisoner had been discharged, but it be
remembered rightly there had been several grounds of ob-

jection.
Mr. WILLIAMS had been in the case of the Queen and
Jones, and the Court had stated the ground of the juiig-
ment in that case to be that the significavit had run in the
name of the Surrogate instead of the Bishop.
Mr. BILL said, on that abjection it was clear, unless
the Act of George 111. had made a charge in the lawn,
the significat must run in the name of the Bishop. In ad-
dition to what had been said by the Attorney-General
on that point, he would merely quote Viner's Abridgment,
under the head Ecclesiastical Law, in which it. was stated
that what was done by the Commissary was of equal power as
if it had be en done by the Bishop, inasmuch as the
Bishop was the principal ; but all things must therefore
be done in the name of the Bishop, although it might be
done by the Commissary. This was precisely the same
principle as the execration of deeds by a power of attorney
—the deed must be executed in the name of the principal
and not of the attorney. The Bishop is the Judge, the Com-
missary is merely his representative. The Bishop had aright
to sit as Judge if he liked—nay, some cases where clergymen
were concerned he was obliged to sit as a Judge. It was ex-
pressly laid down in the Bishop of St. David's case, Ist Salt-
hill, p. 132, that Commissary only sat in case of the Bishop
The Court was perfectly cognizant of the Archbishop, the
Bishop, and even the Archdeacon, but they had no cogni-
zance of any officer of the attorney—of the Bishop, as it
were. If the objections taken by the Attorney-General
were good, then it followed, as a matter of course, that
the whole proceedings in the case were bad and il-
legal. The Learned Gentleman quoted several cases
to show that the Court was at all times anxious
to see that in any case where the liberty of the subject
was involved, the preliminary proceedings were regular.
Now in the present case it did not appear upon the face of
the significavit that the rate was such a one as could be
enforced by the Spiritual Court. It did not appear to the
Court how the rate was made—whether it was agreed by
the inhabitants in vestry assembled, or whether it was
made by the churchwardens, even against the will of the
parishioners. The significavit only said that iMr. Baines
had had the usual notice; but that would not
do, for the Court was left in entire ignorance
of what the usual notice was. It had always been the
policy of the Conrt to watch, with the utmost jealousy,
the attempts of the Ecclesiastical Courts to proceed
against a party in his absence ; and he trusted, that in the
present case, their Lordships would quash the proceedings,
which were so clearly irregular.
Mr. BAINES and Mr. MELLOR followed on the same
side ; but as the case had been so ably argued by the
Learned Gentlemen who had preceded them, they de-
clined to occupy the time of the Court further than calling
their attention to a few cases analagous to the one under
consideration.

Mr. WIGEITMAN said he had to support the sufficiency of
the significavit, and, in doing so, he thought it would be
best for him to take the objections in the order in which
they were made. The first was that taken by the At- j
torney- General, viz., that the significavit was had, because
it was in the name of Sir Herbert Jenner, and not in that
of the Archbishop of Canterbury. It was laid down
in Gibson 923, that the significavit was to issue from the
same Judge as issued the citation. In this case the cita-
tion was made by Sir H. Jenner, by him, therefore, wee
the sienificevit to be issued— that was the plain direction of
the 53d George the Third. His Learned Friends bad '
most it regularly introduced much matter that was irrele-
vant. The Court could not quash the rate. All that the
Court had to look at was the Habeas Corpus and the re-
turn made to it. It would have been fatal to their cause
if they had changed the cause of their proceeding for the
purpose of a significavit, and had made the significavit
in the name of the Archbishop, he not being the Judge
who made the citation, not being the Judge who made
the decree, and not being the Judge who pronounced
the party in contempt. Another objection raised
was, that this was a final decree, though there was
no appearance, and it was said the Court had no
jurisdiction or authority to make a final decree be-
tween the parties, unless there was an appearance.
The Learned Gentleman, upon this point, read an affidavit
made by a proctor of Doctor's Commons, who stated that
he had been in practice for 13 years, and that it was
the constant and invariable practice of the Arches and
other Ecclesiastical Courts, to hear and determine a cause
in the absence of a party who was contumacious and did
not appear after having been served with a citation. But
he suh mitt ed that that their Lordships would not
interfere with the jurisdiction of a Court which had
not departed from its regular course of proceed-
ing. Indeed it did not appear on the face of the
will, that there had been any final judgment or de-
cree against him, The citation was for Baines to pay—he
would not pay, and would not appear, and was therefore
deemed contumacious. He begged leave, therefore, to
submit, without reference to the argument, that if it were
a final judgment, it was perfectly regular according i
to the practice of the Ecclesiastical Court, and
that it ne where appeared there had been a
final decree or anything else, than a judgment
between the Churchwarden on the one part, and William
Baines on the other, in a suit in which the proceedings
had been carried on in pain of the contumacy.
Mr. Justice COLERIDGE—Then there are the costa.
Mr. WIGIITNIAN—That was a matter again entirely
for the consideration of the Ecclesiasticat Court.
The reading the significavit introduced another question
arising on the form of the Writ of the Court, could take
notice of the writ now. He hed before protested against
the writ being considered, but, subject to that protest, he
would consider the 4th objection the other side had made,
namely, that the writ did not describe the place of abode in
the manner pointed out by the schedule of the 53d Geo.
111. It was for his Learned Friend to show it was possible
that part of the borough of Leicester was in another county.
Lord DeemeN—Wbyd'dfotehjue'loteu;sdweeo.pualrdltfhfariotyme
hadar in b the form pre-
scribed by the Act ?
Mr. WIGIITMAN observed that no doubt it would have
been better to follow the strict words, but he submitted
seebeneca "
Ti .c
e
9e
thereytio,
curschwoe.
county,
Sheriffs'" , ambiguity
sameguity iinfi
county was the county of Leicester.
fifth objection, he confer,sed, he was rather surprised to
hear taken—namely, that it did not appear the
writ was delivered open in the presence of the
Judge. Was it competent for his Learned Friend
to say that because it did not appear from the
statement annexed to the writ that it was delivered
open, that therefore that had not been done ? If his Learned
Friend could chew by affidavit, or suggest to the Court
that the due course of proceeding required by law was
not taken in this case, then it might be competent for
him to make the objection. The Court would
presume that the writ was delivered in a proper
manner, unless it was shewn to the satisfaction of
the Court that the proceeding was not strictly regular.
There was one objection, though not made by the Learned
Attorney General, was taken by Mr. Baines, namely, that
it did not appear the Ecclesiastical Court bad any jurisdic-
tion with respect to this church-rate, because the sum was
utidtr 101. That objection he (Mr. Wightman) sub-
mitted was not better founded than any of the others,
The Ecclesiastical Court had a general jurisdiction over
Church-rates, but it was the Magistrates who had the
to
particular jurisdiction given them by the statute of 53
George 111. In the case of the King against the Church-
Nlullgrove, 5 Nlaule and Selwyn, the Court held that the
Justices could not interfere unless it appeared the amount
6tatute
was under 101 , and no question had been made as to the va-
lidity of the rate in the Ecclesiaitical Court. But here pre_
pLearned Counsel, in conclusion, submitted that the signifi.
the Magistrates bad no jurisdiction. The
c,avit had been issued according to the very words of the
were had, and that the issuing of the significavit in the
by the Judge before whom all the proceedings
de-
cree was made
namehla of the Archbishop would have been clearly irregular,
thet t the second ground of objection entirely failed, because
c"urse of proceeding was one that wholly and solely
belonged
to the Ecclesiastical Court who was the
sole judge of its own rules of prctice ; that the de-
Ecclesiastical g a case of subtraction
Court , b .
appeared the snit
of Church. rates rt
em-;
es ; that their Lordships would not
interfere. on the of h ,cause of proceeding being
in a suit within the jurisdiction of the
different from ground sc•
of the clam°, law,
the practice
provided it
equivalent to saying, being
it did not appear front flw
the Ecclesiastical Court
was
stating the in the county of Lei-
cester,Party to be in your
county ;" and with respect to the last objection,
the Court at
had Wasjurisdiction
in which
writ that it was not
delivered open in
Westminster, or to
the Sheriff of I.,eicestesshire, but that i
.f it had
would not been so delivered, it have been for his Learned
Friend to show ' by affidavit, and that lie was not to "
as-
sume there had been any irre ularitY• ~
Mr. Justice LITTLEDALE gYou couna not putd. itself;that on
affidavit. That is an
objection Act, bit
but you conid not, under sergeant Onslow's ,g
it under discussion by affidavit- you must not judge by
the writ itself.
but the writ is
Mr. WIGIITNIAN—NO doubt, my Lord,
b itted
not before you. The Learned Counsel then
"Colt to
procee mg
that no objection had been niadcltothienduce the
discharge the prisoner out of custody.
The ATTAINEY-nENERAL replied.
Lord DENNIAN—We l \\ e nes ay
tions ; but he will certainly give judgment En
morning.
must consider some of tTlide objdee-

and accomplished Princess Borgbese'
ItoME, OCT. yesterday evening the young
whose premature
dvath all Rome laments' was buried in the family vault in
the church of Santa Maria Majorc. The funeral was on a
magnificent scale. The hearse was drawn by a large num-
ber of )outig men, and an immense crowd
the mortal rr mains of the Princess to their lasta
abode.
There is a great mortality here in all classes, indepen-
panied
dently of the numerous deaths of the smallpox. The
Duchess de Riguano, daughter of the Prince de Piombion,
is also dying.
THE FOSSIL 'FREES ON TILE BOLTON RAIL-
WAY —On Wednesday last a party, consisting of thirty
persons, proceeded Sy the Bolton railway from this town
to Dixon Fold to examine these very extraordinary relics