The Sun.
London, England, 1844-12-20 00:00:00

PARISH OF WALBROOK.

GIBBS AND ANOTHER V. FLIGHT AND ANOTHER.
This case, which has been looked to with great inte-
rest in the City, and has been kept back from day to
day since the commencement of the special jury sittings,
from various interruptions, came on at length this morn-
ing, at half-past nine o'clock.

Sir Thomas Wilde and Mr. Sergeant Channel' (with
whom were Mr. Cowan), conducted the ease of U.',
plaintiffs ; Mr. Sergeant Talfourd and Mr. Adolphus ap-
peared for the defendants.
Mr. COWAN opened the pleadings. This was an action
of trover to recover possession of certain books, the pro.
perty of the plaintiffs, as churchwardens of the parish
of Stephen's, Walbrook, in the City of London, which
the defendants had unlawfully seized and carried away.
The defendants pleaded that the plaintiffs were not the
churchwardens of St. Stephen's, Walbrook ; that they
had not possessed the books in question as such church-
wardens; and thirdly, the defendants pleaded on the
general issue that they were not guilty.
The pleadings having been real,
Sir T. WILDE addressed the jury for the plaintiffs.
They had been informed by his Learned Friend that
this action was brought by the Lord Mayor and another
gentleman against the defendants, to obtain possession of
certain books which they unlawfully withheld. The
plaintiffs claimed the custody of these books as church-
wardens of the parish of St. Stephen's, Walbrook, and
the defendants denied that the plaintiffs were entitled in
the character of churchwardens, which they set up. The
question now brought before this Court was whether, in
common law, the parish of St. Stephen's was properly
governed by a select vestry, or by an open vestry of the
parishioners at large. It would be shown, on the part of
the plaintiffs, that, from time immemorial, the parish had
never been governed by the parishioners at large. Docu-
ments, as far back as the year 1642, would be laid before
the Court to prove that, beyond all question, the parish
was at that time governed by a select vestry. But the
defendants thought the parishioners at large
were entitled to take part in the vestry,
and this cause was raised to try that question. The
plaintiffs had been subjected to much animadversion on
account of the course which they had thought it their
duty to take in this matter; but he should be able to
show the jury on what slight foundations a great deal of
obloquy might be heaped up. The parish of St.
Stephen's, Walbrook, was possessed of certain estates,
which were vested in trustees, and, as these died oft,
others were appointed, and the estates were conveyed to
them. Of course. there were besides the ordinary
officers of the parish ; and thus the affairs of the pariah
and the estates were managed until September in the last
year. In the preceding month of August, some gentle-
men called upon Mr. Alderman Gibbs—now the Lord
Mayor of London—and asked to see the parish
accounts. The Lord Mayor answered them in
the most courteous manner, and told them that
he would call a vestry, and consult that body as
to whether he should comply with the demand or not.
The vestry was called, but, instead of waiting for the
result, the defendants thought proper to raise quite
another question. A number of gentlemen rushed into
the vestry-room, and took possession of the books, de-
claring that it was an open vestry. Those who formed
the select vestry thought it was their duty to maintain
the rights of the parish. For as it had been since the
year 1200 the custom of the parish to be governed-by a
select vestry, that had become a right of the parish, and
it was their duty to maintain it. This first interruption
took place in August. In September another attempt to
hold a select vestry, for the purpose of passing the ac-
counts, was made, and with a like result. The church-
wardens then found it necessary to call in the aid of the
civil force to prevent this irruption ; and at the first
legal meeting of the vestry the Lord Mayor produced
his accounts, and they were passed item by item.
The whole of the accounts, from beginning to end, were
printed and distributed at the expense of the Lord.
Mayor. who had been described as so obstinate that he
refused to make any such statement. A thousand copies
were also printed, in consequence of the noise made in
the Common Council on the subject, and were generally
distributed. Since that time a bill in Chancery had
been filed against the select vestry, under the mi,taken
supposition that they were trustees of the estates ; and
the Lord Mayor's accounts, not only as trustee, but also
as churchwarden, were now under examination. He
should make no allusion to anything that had occurred
in the course of that investigation. In consequence of
the attempt to break in upon the select vestry in the
manner that he had stated it was thought that, instead
of the one side continuing to insist on their right to
attend, and the other resisting that right, it would
be better that the question should be sub-
mitted to legal decision. The present plaintiffs
were the churchwardens appointed by the select vestry,
and the defendants had been appointed to the same
office by the parishioners at large. The question now
was, in fact, who were the legal churchwardens? The
parish books were admitted to have been taken, and the
action was brought merely to try the question whether
the plaintiffs or the defendants were entitled to their
possession. He did not know what were the grounds
upon which his Learned Friend meant to resist the
claims of the select vestry. He would state, however,
very shortly what had been the course pursued in the
parish from the earliest period. The parish books begun
in the year 1648, and he should divide the interval from
that year down to the present time, into certain periods,
stopping where there was any difference or alteration.
In 1648 a certain number of persons would be found
acting as the vestry. It would not be in the power of
the parties to show by evidence of antecedent facts how
those persons were appointed, but it would satisfac-
torily appear what was the subsequent course of ap-
pointment. The first series would be from 1648 to 1672.
During that time they could find the same persons
always attending, with the exception that every person
who, subsequently to that served the office of church-
warden, or paid the fine, became a vestryman, and acted
in that character. It would seem, in fact, that the ancient
vestry was composed of the by-gone parish officers,
who had either served the office of churchwarden, or
been fined. In 1672 a document came forth which
could, he supposed, be made the subject of ob-
servation by his Learned Friend. In that year a
faculty was issued by the authority of the Bishop,
which ordered that the select vestry should con-
sist of certain persons, embracing the old :select ves-
try and other individuals. It would be found that some
of those persons afterwards attended, and that a consi-
derable proportion of them were elected to the office of
churchwarden, and thus became select vestrymen by
virtue of their nomination. From 1672 to 1699 the
same course was uniformly adopted ; that is to say,
those who had served or had been fined, were constantly
added to the existing body. From 1699 to 1734 the
same course was still pursued ; the mode of initiation
into the office of vestryman continued to be what he had
stated ; and the same remark would apply to the period
between 1735 and 1834. In 1834, an Act of Par-
liament was passed which constituted church-
wardens and overseers a sort of corporation for the pur-
pose of their taking the property of the parish by sue.
cession. Formerly, where property belonged to the
parish, it was necessary to convey it from one set of
persons to another, who represented the parish, but
under this Act the property went to the successors of
the existing vestry without any new instruments or deeds
of conveyance. The overseers then became trustees of
the parish, and that was the only addition which bad
been made. Now this was the history of the vestry up
to the present time. With the exception caused by the
faculty, there had been one uniform system from first to
last. What were the deviations which his Learned
Friends would attempt to show ; or what the grounds
upon which the legality of this vestry would be attacked,
it was impossible for him to conjecture. It could hardly
be contended that a select vestry was an unconsti-
tutional body, or that it could not exist. It seldom
happened in this country that large bodies of
men having a common interest regulated their affairs in
their own persons. Such matters were usually entrusted
to governors, directors, masters, or other parties, who
acted on behalf of the rest. It was not remarkable,
therefore, that in olden times certain parishes came to a
resolution that certain parties should be chosen as a se-
lect vestry to manage the parochial concerns. The jury
would find no instance of an open vestry in that parish.
During the time to which he had referred, the vestry
was always composed of a certain number of individuals,
who were appointed in a particular manner to fill the
office. His Learned Friend night possibly contend that
the faculty had made some alteration ; but he need not
remind his Lordship that a case had been decided in
which that point had been ineffectually raised. He (Sir
T. Wilde) thought the whole dispute would resolve it-
self into a question of law ; and if so, all that could be
done on that occasion was to insure the trial of that
question in the most effectual manner.
The LORD CHIEF JUSTICE—The better course would
be to turn it into a special case, or a special verdict.
Mr. Sergeant TALPOURD did not apprehend that on
the facts of the case there would ultimately be any dis-
Fpute. It would, he thought, be desirable for his Learned
Friend and himself to agree as to the effect of certain
portions of the evidence as the foundation of a case. Ho
believed he was perfectly correct in stating that in 1641
certain persons would be found acting as the vestry of
St. Stephen's, and that they continued so to act down to
the time of the great fire in 1666.
Henry Phillips was then called and examined for the
plaintiff as to certain entries in the first parish book,
commmencing in 1648.
The Learned Counsel were consulting as to certain
portions of the evidence, when
The LORD CHIEF JUSTICE said if there was any nice
matter of account to be decided, it would be better that
t should be referred to some barrister.
The witness then went over a great deal of documen-
tary evidence for the purpose of showing how the church-
wardens of St. Stephen, Walbrook, had been chosen
since the time of Henry 111., from which it appeared,
that it had been the habit of re-electing persons as
churchwardens of the parish.
At this point of the argument,
Mr. Sergeant CHINNELL stated that it waa his inten-
tion to argue that the churchwardens of the parish were
elected every year.
The LORD CHIEF JrsTrcE---Well, I suppose from
the evidence that has been given that it may be taken
that there is no re-election during the intervening years
as churchwarden ?

The examination of the witness was then resumed, and
eoncluded in favour of the plaintiff.
Mr. Sergeant TALFOTTRD cross-examined Mr. Phillips
IA to the attendance of several individuals who formed
the committee and churchwardens of the parish of St.
Stephen, Walbrook, and for the purpose of endeavour-
ing to prove that the vestry, instead of being perpetual,
was elected annually. From 1699 to 1734 the documents
showed that there were never less than eight vestrymen
at any vestry meeting. In the majority of instances th•
churchwardens' accounts were audited annually, but
there were PQM@ exceptions. From 1700 to 1734, nevi

Mr. Sergeant TALFOURD said, undoubtedly the greater
number of the points at issue must ultimately come be-
fore the Court above for their decision ; but there were
certain points on which he wished to take the opinion of
the jury.

Sir THOMAS WILDE would certainly have argued the
question in a very different way, if be had thought it
had been intended to take the opinion of the jury on
any of the points. He had understoood that it had been
arranged that it should be turned into a special case.
Lord Chief Justice TisDAL had also so understood it.

Mr. Sergeant TALFOORD then commenced his ad-
dress to the jury, and admitted that the custom
of the parish of St. Stephen's Walbrook, by
means of a select vestry, had been proved, but
he wished to have the opinion of the jury as
to whether that custom was not subject to two condi-
tions, because, if it were not, he should contend that the

_ --
custom was so absurd and mischievous in itself, as to- be
bad in law. As a proof of the mischief of the custom

without those conditions, he would allude to the very
case of Alderman Gibbs himself. He did not mean to

throw any imputation on the character of that gentle-
man, he hoped, nay, he believed, that he had acted ho-
nestly and honourably, and should so believe until it
were proved otherwise; but could they be surprised when
they found him re-electing himself for twenty sus-
cessive years, never having his accounts audited
during the whole of that time—could they wonder
if reports derogatory to his character got into cir-
ezdatii,n? The mischiefs arising from such a custom
Ivere very great, and no one had been, he believed, a
greater sufferer by those mischiefs than Mr. Gibbs
himself. He wished, therefore, to ask the jury
whether the custom was not subject to these
two conditions—first, that the number of select
vestrymen should never be lower than eight ; and
nrcondly, that each year fresh blo3d, as it were,
should be infused into the select vestry by the election
of some one as churchwarden from the body of the

parishioners.
Lord Chief Justice TINDAL—Those are purely ques.
tions of law, which the jury must take from me ;
and I would much rather not be called upon to give an
opiniyn at once upon such nice and delicate questions—l
sell you candidly I do not like to give an opinion, until
I hove had more time to consider the subject. Really
you bad better take a special verdict ; fur suppose you
do tike the opinion of the jury, you will gain nothing by
it. It will come on again as a motion for a new trial.
Mr. Sergeant TALFOURD, after a long consultation
witJs his clients, expressed his regret at being obliged to
proce:d. For himself he should strongly advise them
to accede to the suggestion of the Court, but
they were desirous of taking the opinion of the
jury as to the condition of the election of a new church-
warden every year.
Lord Chief Justice TINDAL—Why, that is a mere
matter of law, and it might be a point for consideration
whether the proper method .of trying that question is
tot by applying for a mandamus to the select vestry, to
curipA them to proceed to such election. You should
decide for yourself, Brother Talfourd, in snch
a case. There is not a point in dispute.
Mr. Sergeant TALFoURD would take upon himself the
responsibility of acceding to: the suggestion of the Court,
at whatever risk of blame.
Lord Chief Justice TINDAL—No one can blame you.
Ever since Westminster Hall has been in existence, such
a case would have been made a special one.
Sir T, WILDE suggested the propriety of their agree-
ing to natne some gentleman as referee, in case any dis-
pute should arise as to the terms in which the verdict
should be drawn up, although he did net apprehend any
such difference.
Mr. Sergeant TA LFOURD, although entertaining no
apprehension on the subject, would accede to the pro-
position. The case, although it had excited great
feeling out of doors, had not been conducted
with any degree of hostility in the Court. He
Lad cautiously abstained from saying anything
that could hurt the feelings of Mr. Alderman
Gibbs. No hostility was entertained towards him,
and the parishioners would be inclined to address him in
the words of Othello to Michael Cassio :—" Michael, I
love thee well ; but never more be officer of mine."—
(A laugh.)
Lord Chief Justice TINDAL—The books shall be open
to both parties, and if there is any book or document
which has not been given in evidence, which can tend
to elucidate the case, either party may put it in.
The jury, under the direction of the Judge, then found
a verdict nominally for the plaintiff, subject to a special
case, and to be turned into a special verdict, if it should
be deemed requisite.

A SSI ZE INTELLIGENCE.

NORTHERN CIRCUIT.--Durham, Dec. 17.
Mr. Justice Coleridge took his seat on the bench this
morning at nines o'clock.
Robert Brown, aged 25, and George Muckleroyd, aged
23, were severally charged with having, at Waldridge, on
the 25th July last, feloniously fired off a gun into the
house of John Walker, with intent to do grievous bodily
harm to the said John Walker and Isabella, his wife.
Mr. Granger, with whom was Mr. Thompson, appeared
for the prosecution, and Mr. Otter for the prisoners.
In this case it appeared that the occurrence eomplained
f originated in the recent strike of the pitmen of Dur-
":Arl2 and Northumberland. The prosecutor was a
black-leg," who refused to enter into the pitmen's
anion, and never left his work. On the other hand the
;;:isoner Brown was a unionist, and had, shortly before
g. offence was committed, been ejected from the house
which he had held under the colliery he worked at.
As to the other prisoner, no evidence was given directly
to show in what capacity he was engaged, but in-
directly ground was laid from which to infer that
lie also was one of the recusant pitmen. On the
'morning of the 25th of July, about one o'clock, the
prosecutor was awakened by a loud report, and immedi-
ately after felt himself wounded in the left arm and
groin. His wife also was wounded in the left knee.
`He got out of bed with great difficulty, arid summoned
assistance, after which he proceeded to the colliery office,
about 400 or 500 yards off, when, some time after, four
or five shots were taken out of his arm and four or five
more out of his groin. The knee of his wife appeared
to have been penetrated by the shots, but the surgeon
1.. d not been able to find them. The next door neigh-
bk,ar of the prosecutor was awakened simultaneously by
another explosion, and it was ascertained from the marks
outside the houses that the person or persons who had
.fired the guns had run from the place where the first
slot was fired to that whence the second one was dis-
elia.rged; and in the latter case the charge of the gun
had I.senetrated the window shutters outside the window,
broken the panes and window frame, passed through the
back room, into which it was fired, and lodged in the
front wall of the front room. Luckily none of the inha-
bitants were injured. To prove the malicious motives
of the offenders, it was shown that the prisoner Brown
and
another person had been seen, during the previous
afternoon, inspectin., premises
the from the outside,
where they would be able to see the position of the bed
,on which the prosecutor and his wife lay; that as the
ground behind the cottage was an ascent,the parties had
take
knelt down on one knee, in order tomore
ac e delibe-
rate at 'citrtaiip; Aim at the prosecutor!
the prisoners,with the transaction, • it was showcnonnti:.actt
Brown had borrod a double-barrelled gun of another
pitnaan a few days before, holding out an intimation that
e would parebps6.l6 that the gun, was handed to him

-17

‘l'

churchwardens were elected for the parish of St.
Stephen, Walbrook, every year ; and from 1775 to 1843,
at tte different vestry meetings that took place in the
paeish there was seldom mons than five present, in
n 1,11- instances only three ; and yet at these meetings
rates were made for repairs of the church, a rate in-
flicted for the relief of the poor, and churchwardens
chneon. On the 2d of May, 1833, a vestry met, con-
sisting of only five, among whom was Mr. Alderman
Gibbs, at which a vote of thanks was voted to him, and
a resolution come to that the streets should be peram-
bulated on Ascension Day.
Ix his re-examination by Mr. Sergeant CHANNELL—In
April, 1813, it appeared that in consequence of the
refusal of Mr. Motteux to undertake the office of
churchwarden, Mr. Michael Gibbs was requested
to suffer himself to be re-elected, to which he (as
churchwarden) acceded, and Mr. Motteux was
fined 201. for refusing to serve. From 1813 to 1824 a
new person was elected churchwarden every year.
From 1826 to 1840 Mr. Gibbs and Mr. Atkins were
re-elected each year. In 1841, 1842, and 1843, Alderman
Gibbs and Mr.W.E.Eddison were electedchurchwardens.
At each election of Mr. Alderman Gibbs as churchwar-
den, there was a vote of thanks to him, and request that
lie would continue to serve. On the 2d March, 1814, there
was a vote of thanks to him, and that vote was directed
to bepublished in the newspapers. There were on these
occasions generally five persons present, exclusive of the
Alderman himself. Overseers were first appointed by
the vestry, on the Ist of April, 1818. The practice of
appointing auditors of the churchwardens' accounts ap-
peared to have existed down to 1824. There had been
no appointment of auditors since 1825, when Mr. Gibbs
and three others had been appointed auditors for that year.
In April, 1835, two gentlemen attended as vestrymen,
and voted, who had not served the office of church-
warden, but had served the office of overseer. One of
'hese gentlemen was Mr. Whittaker, one of the present
plaintiffs. He was chosen churchwarden in 1844.
Abraham Brown, one of the Lord Mayor's servants,
proved the distribution of copies of the accounts to every
house in the parish in January last, and the posting on
the church-door, on last Easter Sunday, of a notice for a
select vestry for the election of churchwarden.
Mr. Phillipps, the vestry-clerk appointed by
the select vestry, proved the election of Mr.
Alderman Gibbs and Mr. Whittaker as church-
wardens, by the select vestry, on the 12th of
April, 1844. Seven persons attended that meeting.
Two of the persons then present had never been church-
wardens, but they were the overseers for the
year, and attended in that capacity. On endea-
vouring to make their way into the vestry-room
on that occasion, they found the room full
and Dr. Croly in the chair. The parties occupying the
vestry-room were requested to leave the room, which
they did not do, whereupon a member of the :-elect vestry
rnopsd an adjournment to Alderman Gibbs's house,
where the election took place.
On his cross-examination, witness said he had known
Mr. Gibbl as a resident in the parish for thirty years,
without carrying on any business. The Alderman was
the chairman at the meeting at Alderman Gibbs's
bou.e. The question of adjournment was put by Mr
Atkins.

On his re-examination, he stated that it was usual for
the churchwarden to take the chair at the meetings of
the select vestry when the rector was absent. There
were, at the present moment, eight select vestrymen,
who had served or fined for the office of churchwarden.
He was present when the plaintiffs were sworn in, and
also when defendants were sworn in. It was all done at
the same meeting.
This concluded the case for the plaintiff.
Lord Chief Justice TINDAL suggested the propriety of
the whole being turned into a special case fur the opinion
of the Court above.