The Sun.
London, England, 1840-11-24 00:00:00

LAW IN TELLIGENCE.

COURT OF QUEEN'S BENCH, Nov. 23.
THE QUEEN V. WILLIAM BAINES-CHURCH-EATF3.

(Continued from our First Edition of yesterday.)
The ATTORNEY- GENERAL submitted that that would not
help the case at all Evidence could not be taken in a
case to supply a defective allegation. The allegation was
that he had refused to pay a sum of 2/. 55., to which he was
rated and assessed; it then went on to say that this was in a
suit of substraction of Church-rate, but that was only evi-
dence to support a defective allegation; but if the allega-
tion was defective, no evidence whatever could support it.
There was a case in point in the 2d Salthill, p. 681. By
the Ist of William and Mary, it had been enacted,
that if any Clerk of the Peace should misd_ mean
himself in his office, the Court of Quarter Session should
have power to remove. Now in a case which occurred, a
certain A. D. was charged with misdemeaning himself, and
the Court of Quarter Session removed him, the writ stating
that he had been charged with misdemeaning himself, and
that it appeared he had misdemeaned himself in his office,
by extorting from one A. P. the sum of 55.,
but the allegation was defective, and Holt, Chief Justice,
together with seven other of the Judges, determined that
the order of sessions must be quashed as insufficient,
inasmuch as it did not appear that the misdemean-
our charged related to his office. And in thia in-
stance he contended that the allegation ought to have
shown that it was for the non-payment of a sum of
money to which the defendant had been assessed for a
Church-rate for the repair of his parish church. The
case might be a cause of subtraction of Church-rate,
and yet not a Church-rate which he had been or-
dered to pay. It was not sufficient that their
Lordships shotf.d imagine what might probably be the
case ; they had no right to suppose anything, and the juris-
diction ought to hare been expressly shown in the allega-
tion. He had two other objections to make
before he came to a conclusion of his argument, Ist
in the schedule of the Act 55, George 111., Chapter 31,
the form in which the writ to the Sheriff was to
run was expressly given. Now where the liberty of the
subject was concerned, it was of the utmost importance
that all these forms should be du'l observed. In the case
of Richards and Stuart, 10 Bingham, p 319, a def,ndant
had been held to bail on an action of trespass. He had
been arrested on a warrant of capias for 12,000/. The
Court discharged the bail bond on his putting in a common
appearance, on the grouad that the defendant had been
held to bail in an action of trespass, instead of on premises.
Now, it was most fit that the rule laid down in that case
should be rigidly adhered to. Chief Justice Tindal in
that case had said that it would be always more safe and con-
venient that writs should run in the very words directed
as then there could be no rooms to indulge in conjecture,
and no doubt could possibly arise on the subject, and in
that opinion Mr. Justice Bosanquet had concurred. Now
the words of the schedule were, " Whereas it appears that
—, of , in your county, is manifestly contuma-
cious," &c. Now the writ in this instance was not in the
words of the statute. It stated, " Whereas one William
Baines, of the Market-place, in the said borough of Lei-
cester, hatter and hosier, a parishioner and inhabitant of the
parish of St. Martin, in the said borough of Leicester, in
the county of Leicester, is manifestly contumacious,"
&c. Now it changed the language of the schedule ;
it did not say in your county, it said in the county of
Leicester. Now, it did not necessarily follow that the
whole of the borough of Leicester, in the county of Leices-
ter, should be in his bailiwick. In the Ludlow case their
Lordships bad granted a mandamus concerning the ad-
mission of Mr. Lechmere Charlton, as a burgess of the
borough of Ludlow, in the county of Salop, as residing
at Ludford, within the borough of Ludlow, in the county
of Salop. Now, although such was the designation of
the borough, yet Ludford was actually in the county of
Warwick, and therefore not within the jurisdiction of the
Sheriff of Salop, as not being within his bailiwick.
Mr. Justice COLERIDGE— Would not " in the county of
Leicester" be a sufficient description ?

The. ATTORNEY- GENERAL—I would ask why depart
from the words of the Act--the place of the residence of
Baines, although within the borough of Leicester night
not be within the county ? Hu would now come to the last
objection; by the statute of 53d George 111, it was
enacted that the statute of 5 Elizabeth sheuld
be still applicable. Now by the sth Elizabeth
it was enacted that the writ of excommunicatione ca-
piendo should be •pen, and so delivered to the Sher,ff
in the presence of the Judges—this was a caution
to protect the liberty of the subject. It was to be open,
and delivered in the presence of the Judges, in order that
they might have an opportunity of forming an opinion as to
the regularity of the proceeding. Now it did not appear
that in the present instance the writ had been delivered
open at all. It had merely been delivered, but not open,
so that tho Judges could have no opportunity of forming
any opinion as to its validity. Here a form interposed by
the law for the benefit of the subject had not been observed,
and the proceedings connected with the arrest could not be
considered other than illegal. Ile would not trouble their
Lordships further, but would submit that on the grounds
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 mod, of proceed-
ing in the case ; and, after some little discussion, it was
settled that the course pursued in the case of the Canadian
prisoners, should be adopted as a precedent to be followed
in a►l 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 that in the case of the " Queen v. Jones," the de-
fendant had been discharged by the Court om the very
ground that the certificate had run in the name cf the Sur-
rogate instead of the Bishop.
Lord DENMAN said the case had not yet been reported.
He recollected the prisoner had been discharged, but it he
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 judg-
ment in that case to be that the significavit bad run in the
name of the Surrogate instead of the Bishop.
Mr. HILL said, on that objection it was clear, unless
the Act of George 111. had made a change in the law,
the significavit 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 Vince& 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 been dono 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 execution 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 Corn.
missary is merely his representative. The Bishop had
a right to sit as Judge it he liked—nay, in some cases
where clergymen were concerned he was obliged to
sit as a Judge. It was expressly laid down in the
Bishop of St. David's case, Ist Salthill, p. 132,
that the 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 lace 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—whet.her 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 Mr. 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 thn 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 analagius to the one under
consideration.

Mr. WIGIITNIAN said he had to support the sufficiency of
the significavit, and, in doing so, be thought it would be
best for him to take the objections in the order in which
they were made. The first was that takt n by the At-
torney-General, viz., that the significavit was bad, 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 926, 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, tnerefore, was
the significavit to be issued—that was the plain direction of
the 53d George the Third. His Learned Friends had
moat irregularly 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 course 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
made Learned
in
tor of Doctor's Commons, who stated that
he bad been practice for 13 years, and that it was
the constant and
other Ecclesiastical
invcariable practice of the Arches and
tfhroemjuritissdietati
havingpy who was contumacious and did
Courts, to hear and determine a cause
in the absence of a
thatbeen served with a citation.
not appear after
hplerappear
regularo fL
But be submitted
Coaordusrhseips
ofwopurldoceendo_t
Court which had
ninotterfere
ing. Indeed it did not
departedwith
writ, that there had been anry dualothe face of the
de-
cree against him. The citation was for judgmentai or
would not pay, and would not appear, and was to pay—he
as
deemed contumacious. He begged leave, wthe
efther therefore
submit, without reference to the argument, that iriitore, to
were
a final judgment, it was perfectly regular according
to the Ecclesiastical cording
to the practice Court, and
that it nowhere appeared. there had been a
anal decree or anything else than a judgment
between the Churchwarden on the one part, and William