The Sun.
London, England, 1846-11-25 00:00:00

CO URT OF COMMON PLEAS, Nov. 24.

Their Lordships gave judgment this morning in the
following cases:—

GIBER AND ANOTHER V. FLIGHT AND ANOTHER.

Mr. Justice COLTMAN delivered the judgment of the
Court in this well-known case. This was an action in
trover brought against the defendants for the detention
of certain books alleged to belong to the plaintiffs as the
churchwardens of the parish of Walbrook. The de-
fendants were two of the rate-payers of the said parish,
who disputed the legality of the election of the plaintitL.
The principal point raised by the case, which now came
before the Court in the shape of demurrer, which had
been argued in a previous term, was, whether the
plaintiffs were the churchwardens of the said parish on
the 12th of April, 1844, or in other terms, whether the
re election of Mr. Alderman Gibbs on that day was valid
or not, he having been juniorchurchwarden theyear before,
By the custom of the parish, there were two church-
wardens elected every year front the body of the parish-
ioners, and the select vestry was made up of the past
and present churchwardens so elected. It was stated in
the records of the parish that from the year 1648 to
1734 one churchwarden was elected every year, in the
manner before described, and such churchwarden was
junior churchwarden for that year, and became senior
churchwarden for the next. This was so during the
above period, with the exception of from 1660 to 1672,
which was immaterial to the case, and this was the
period of the great fire of London. From 1734 to 1775,
and from thence to 1824, the order of proceed•
ings was the same, with but four exceptions.
The mode of election named must, therefore,
be pronounced to be the custom of the parish. The
succession of junior churchwarden to the office of senior
churchwarden would, therefore, be stopped, if that office
was allowed to remain in the possession of one person
for many years ; and the number of the select vestry
would also be reduced so as to be ineffectual for useful
purposes. The decision of the Court, therefore, was,
that the re-election of Mr. Alderman Gibbs to the office
of senior churchwarden, on the day iu question, was not
valid, and that a nonsuit must be entered. In giving
this judgment, his Lordship said his brethren, Mr.
Justice Maule, Mr. Justice Cresswell, and Mr. Justice
Erle, concurred.
Mr. CowEN applied to have a special verdict entered,
instead of a nonsuit. The parties could agree as to
the facts to be entered.
Mr. Sergeant TALFounn objected. He considered it
would be unrecvonable to enter a special verdict.
Mr. CoWEN said it was reserved to either party to
enter a special verdict.
Mr. Justice CoLTMAN—That must depend on the
facts found. There must be a nonsuit.

Nonsuit entered accordingly.
WOOLEY V. SMITH.

Mr. Justice COLTMAN delivered judgment in this case,
which was on a rule obtained in last Trinity term.
Damages had been recovered against the defendant for
a breach of contract on the 16th of November, 18-14, and
judgment signed on the 6th of December. On the 16th
of May following a fiat of bankruptcy was issued against
him, and on the 22.1 of August he obtained his certifi-
cate. On the 3d of February, after the plaintiff caused
the defendant to be arrested on a writ of ca sa, a rule was
obtained to set aside the proceedings on the ground that
the defendant was under the prohibition of the bank
ruptey laws. In reviewing the whole case, their Lord-
ships did not consider the defendants' plea good. Judg-
ment in favour of the plaintiff had been signed on the
Gth of December, whereas the fiat was not issued till the
May following, and the defendant had had sufficient
L time and opportunity in the interim to effect an arrange-