The Sun.
London, England, 1846-05-02 00:00:00

LAW INTELLIGENCk.
COURT OF COMMONPLI'AS; May 1.- "
(Sittings in Banco.)
SPECIAL PAPER.....GIBBS V. SLIGHT AND OTITERS•
This was a special case arising out of an action of treys-en
brought to recover the parish books of St. Stephen's, Wal-
brook, and the case came on to-day for argument. The
plaintiff is Mr. Alderman Gibbs, and the defendants are cer-
tain parishioners of St. Stephen's, Walbrook, between whom
and Mr. Alderman Gibbs there has been a long parish war-
fare, respecting the right of the latter to retain and fill con-
tinuously the office of churchwarden for the parish, and by
reason of that office, and his being a member ex officio of the
select vestry, to retain the custody of the parish books.
Sir Thomas Wilde, Mr. Sergeant Channel, and Mr. Cow-
ling, appeared for the plaintiff; and Mr. Sergeant Tallourd
and Mr. Atkinson for the defendants.
Sir T. WILDE, in opening the case, said the parish of St.
Stephen's, Walbrook, had been under the management ()fa
select vestry from the earliest period that the history of the
parish could be traced to ; and the plaintiff alleged that
there was evidence that it had been immemorially governed
by a select vestry. There was no trace of an open
vestry having ever acted in its government. It appeared
that the vestry had consisted, at different times, of various
numbers of vestrymen, from sixteen down to three ; and
that the qualification for a select vestryman was his
having previously filled the office of churchwarden. The
parish consisted of 67 houses, of which a proportion was let
out in counting-houses, and would not therefore furnish in-
habitants capable of filling the character of vestrymen.
After the fire of London the number of vestrymen was re-
duced (by reason of all the houses in the parish being nearly
destroyed) to four, who were qualified to act ; and at that
time a faculty was obtained from the Bishop of London, which
proposed to:add fourteen persons to the vestry, of which eight
should be a quorum. It also appeared that for a great number
of years the select vestry had every year elected a church-
warden out of the general body of the parishioners, who
first served the office of junior churchwarden, and the follow-
ing year was elected to the office of senior churchwarden,
and became then entitled to act as a select vestryman. This
was the invariable course from 1648 to 1734, with the excep..
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sumed again ; and since that period to 1824 there had been
other four instances when this course had not been pursued.
The election of the plaintiff took place in 1844, when there
were four vestrymen present, and certain overseers, who
began to attend the vestry in 1835. The defendants in-
tended to object to the title of the plaintiff, first, on `,her
ground that the custom of the parish, if any, was that the
vestry should be constituted of persons who had either been
elected as churchwardens or had fined for not acting; that
there should be eight (at least) vestrymen present at the
election of a churchwarden; that the Junior churchwarden
should be elected from the parishioners at large, and in the
following year be elected the senior churchwarden. The next
objection was, that the plaintiff having served as senior
churchwarden prior to the year in which he claimed to be
elected, he was not therefore eligible to be elected in 1844.
To this it was objected, that as in the year 1672, the date of
the faculty, and at the date of the plaintiff's election, the
number of the vestry was below the number of eight, that
therefore the custom was destroyed ; that the custom was
uncertain, and had not been settled, but was a sub ect
of dispute. The Learned Sergeant then proceeded to con-
tend that the attempt of a bishop to control a select
vestry by faculty was void. He referred to the case of
" Golding and others v. Fenn," reported in 7 Bamcwall
and Cresswell, p. 765, to show that there must be a reason-
able number of ,vestrymen, and that that reasonableness
must be decided with reference to long-established usage
and the population of the parish. This was a very small
parish. The smallest number attending a vestry prim to
the date of the faculty was six. From 1648 to 1672 there
were 102 vestries held. The number of vestry men attending
these meetings were, in three instances, 6 ; in ten instances,
8; and the remainder exceeding that number. From 1675
to 1843, the number of vestrymen attending hadvaried from
3to 11, and during the whole period from 3to 16. There
were entries of some adjournments, because only seven ves-
trymen were present, but he argued that these were not con-
clusive. Sturges Bourne's Act, the 59th George 111., c. 12, a.
1, provided that no select vestry should consist of more than
20, nor of less than 5 members; and looking at the vast
number of parishes, some of large extent, under the pur-
view of that Act, where five vestrymen were thought reit-
senable and sufficient to fulfil the duties imposed on them, he
contended that in this small parish of St. Stephen's four vestry..
men were a reasonable number—and the adjournments fm. a
deficiency of vestrymen were subsequent to the date of the
faculty requiring eight to be present, and that instrument, he
contended, was void. He submitted, that whenever the
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petent for them to do so, but it was not a necessary
the custom. Ile contended, also, that the custom 1 patz °f
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from the number having, in 1762 as well as in 184.51,`" '-
reduced below eight. Neither was the number definite, and
therefore this was not a good custom. There was nothing
in point of law to render it unreasonable that three should be
the number of the vestry.
Mr. Sergeant TALFOURD, for the defendants, said the claim,
on the part of the plaintiff, was, that a select vestry, composed
of those who had served the office of churchwardens, being
the persons on whom devolved the election of church-
wardens for all time to come, should be at liberty to elect
themselves as churchwardens without limit or restriction,
from time to time—that the select vestry should be able to
prey upon itself until it sunk down to three in number, in•
cluding the two subsisting churchwardens. If pn..
ciple were asserted, he did not know why the
numbthiserri
of
three were to be maintained, or why they should not, like
tontine, sink down to the survivor, and go on till the custom
was lost in the skies, when the survivor should depart this
life. In truth, this was a claim in a body to take the whole
responsibility of a parish into their own hands. For nearly
200 years, down to 1824, there were only eight instances la
which the select vestry had not been annually renewed by
a perpetual selection of junior churchwardens from Me
body of the parishioners. In 1811 Mr. Alderman (I ibbs
was elected junior churchwarden, and subsequently senior
churchwarden; and again, in 1824, he was elected junior
churchwarden, and senior churchwarden in 1825, and had
continued to be re-elected down to 1844, the select
vestry every year growing less and less, until the senior
and junior churchwardens had almost acquired a fee-simple
in their office. In 1844 there were only four persons, in-
cluding the plaintiff, at the election. The defendants con-
tended that it was quite impossible that such a custom as
this could ever have had a legal origin. It was monstrous to
suppose a custom which could thus reduce the select vestry
to a point; it would, in fact, be a suicidal custom. Without
depending on the faculty, the number of eight named in it
was good evidence that that number of vestrymen was
thought reasonable as a minimum, and it agreed with the
usual fact. He submitted that the custom set up was one
which their Lordships would not sanction because of its
unreasonableness. It was clear that Lord Tenterden, iu
the case of " Golding v. Fenn," when he suggested that
"the love of ease among men would usually counter.. balance the love of power," never contemplated a case
like the present. The effect of the custom contended for
by the plaintiff was to make the churchwardens an irre-i
sponsible body ; as churchwardens liable to account to the
select vestry, and, as the select vestry, accounting to them-
selves.
It might be that everything had been done which
the parishioners could desire; but this case must not be de-
cided according to the character of individuals. It might
be rare to find a gentleman of the undoubted abilities and
business habits of Mr. Alderman Gibbs thus placed. It
might be with regard to Mr. Alderman Gibbs, as was mid.
by the Emperor Alexander to Madame de Steel, in answer
to her question, " How can despotism be so centered ht
you ?" " Ah, madame," replied he, "I am only a happy ao-
cident." It might be "a happy accident" that a gentleman
so qualified as the plaintiff was placed in such a position.
Ever since 1835 the overseers had voted with the vestry; but
they were not legally members of the vestry, and had no
more right to vote than persons called out of the streets.
He cited the case of " Tyson v. Smith," in 6 Ad. and EL
645, and 9 Ad. and EL, 406, to show that, in order to its
validity, a custom must be certain and reasonable in itself,
commencing from time immemorial, and continuing with-
out interruption; and whether the custom is reasonable
or not depends on the decision of the judges. Thus a custom
reported in Lord Raymond's Reports, p. 1558, alleged by the
vicar of Wakefield of a due of 10d, for the churching of
women, from every householder having a child born in the
parish, at'the usual time when the mother should be churched.
was held to be invalid, on the ground that the time was un-
certain and unreasonable, as the husband might be called on
to pay though his wife was not churched at all. He would
not, however, trouble their Lordships with referring to many
of these cases (some of which were very curious), they were
so wide of the present question. He concluded with arguing
that as the custom contended for by the Plaintiff tended to
a t some length, and the
irresponsible power, it was unreasonable and bad.
Sir T. WILDS replied Court
re•
served its decision.
The case occupied the whole day.