Craven v Sanderson and Others
| Jurisdiction | England & Wales |
| Judgment Date | 21 January 1838 |
| Date | 21 January 1838 |
| Court | Court of the King's Bench |
English Reports Citation: 111 E.R. 938
IN THE COURT OF KING'S BENCH.
For subsequent proceedings see 7 Ad. & E. 880.
938 CRAVEN V. SANDERSON 4 AD. & E. 667. craven against sanderson and others. Saturday, January 30th, 1836. In prohibition by a party libelled in the Ecclesiastical Court for non-payment of a church rate, the plaintiff in his declaration alleged that the parish of W., of which he was a parishioner, was immemorially divided into four townships, the inhabitants of which had been immemorially liable to repair the parish church ; that the rate was made for repairing tbe church, but was assessed upon three of the townships only, omitting H., the fourth; and that defendants had libelled plaintiff, pretending that H. was not liable to such repair, by reason of some supposed law or custom, and had immemorially repaired a chapel of its own. Plea, that there was, and had been immemorially, a chapel in H., where the inhabitants received all divine rites and services, and which they repaired and maintained exclusively by a rate on H., and that from time immemorial no rate had been assessed on any person in H. for the repair of the parish church ; without this, that the inhabitants of the four townships were liable to contribute to the repair of the parish church ; conclusion to the country, arid issue joined thereon. At the trial, the plaintiff proved that H. was a part of the parish of W.; and it appeared, on cross-examination by the defendants, that H. had its own church or chapel, and churchwardens, and had not, at least for twenty-five years, paid church rates to the parish. The Judge held that the defendants were entitled to a verdict on this evidence, for that, issue being joined on the traverse, the matter of inducement in the plea was admitted, and the issue confined strictly to the matter of the traverse: Held, that the plaintiff, joining issue on this traverse, could not be taken to have admitted the previous allegations; that the traverse, if too general, was not immaterial; that the parties must be taken to have intended to put in issue the liability; and that the defendants, on whom the onus of proof lay, were to prove the matters in the inducement making up the fact traversed. Held, also, that the mere fact, of a district in a parish having kept up a chapel of its own without coming on the parish rates, did not shew a custom in such district to maintain its chapel by rates levied on its own inhabitants ; and that the traverse was therefore not proved. And the Court granted a new trial. [For subsequent proceedings see 7 Ad. & E. 880.] Prohibition. The declaration stated that, whereas the parish of Wakefield, in the county and diocese of York, now is, and from time whereof, &c. hath been, an ancient parish with a parish church belonging to the same; and, during all that time, hath been and is divided into certain townships, viz. Wake-[667]-field, Stanley-cura-Wrenthorpe, Alverthorpe-cum-Thornes, and Horbury; and the inhabitants of the said townships have been, during all that time, and still are, liable to contribute to the repairs of the parish church (a) : and whereas, in the vestry of the said parish church, on the llth of August 1831, the churchwardens and the inhabitants of the said parish, or the major part of them, made a rate upon the parishioners, inhabitants of the said parish, for certain repairs of the said parish church, by which rate the parishioners, inhabitants of the township of Horbury, were not rated to the repairs of tbe said church ; and the parishioners inhabitants of the said townships of Wakefield, Stanley-eum-Wren-thorpe, and Alverthorpe-cum-Thornes, only, by the said rate, were rated to the said repairs, excluding Horbury and the parishioners, inhabitants thereof, from contribution of the said rate to the said repairs : and the said plaintiff before and at the time of the making of the said rate, and thence hitherto, has been and still is a parishioner, inhabitant in the township of Wakefield aforesaid; yet the said defendants, churchwardens of the said parish, well knowing, &c., but pretending that the parishioners, inhabitants of the said township of Horbury, are not liable to contribute or be rated to the repairs of the said parish church by reason of some supposed custom, prescription, or law of the land, and that the repairs of a certain chapel in Horbury aforesaid have been immemorially made by the parishioners, inhabitants of the said township of Horbury, only, and that the said rate, in respect of the said premises, was and is a valid rate, and intending to aggrieve, &c.: the declaration then set [668] out the libel of the defendants in the Spiritual Court, which alleged that the parish church (a) Some allegations in the pleadings, as to certain district chapels, are omitted as not material here. 4 AD. &E. 669. CRAVEN V.SANDERSON 939 of Wakefield wanted repairs, &c., the costs of which ought to be paid by a rate on the possessors and occupiers of houses, lands, &c., in the townships of Wakefield, Stanley-cum-Wrenthorpe, and Alverthorpe-cum-Thornes ; that the said Michael Sanderson, Ac. (the defendants in this action), after the requisite proceedings (which were set out), made, with the inhabitants, a rate for the repair, &c., of the said church; and that Craven (the plaintiff in this action) was thereby duly rated at the sum of, &c. for premises which he occupied in the parish of Wakefield; that Sanderson, &c., were the churchwardens of the said parish duly elected, sworn and admitted; and that the rate was then due. The plea to the libel was also set out, wherein the respondent alleged that the exemption of Horbury, if any, from liability to repair the parish church, ought to have been pleaded ; and he denied that he was legally rated, or that the rate was due to the churchwardens as libelled. A further plea was set out, which it is not necessary to state. The declaration then set out the answer of the churchwardens, in which they insisted on the exemption of Horbury, and the liability of the other townships, and alleged that Horbury had a chapel with all parochial rites, which chapel had from time immemorial been repaired by the inhabitants of that township. The answer of Craven was added, in which he again denied that the three townships were liable in exclusion of Horbury, or that Horbury had exclusively repaired the last mentioned chapel. To the declaration in prohibition the defendants pleaded, that there now is, and from time immemorial [669] hath been, a church or chapel within the township of Horbury aforesaid, at which the inhabitants of that township do receive and enjoy, and from time immemorial have received and enjoyed, all manner of divine rites and services, and that the costs and expenses of repairing the said church or chapel, and of providing necessaries for the performance of divine rites and services therein, are, and from time immemorial have been, exclusively paid and defrayed by rates and assessments upon the possessors and occupiers of houses, lands, and tenements, situate within the said township of Horbury ; and that, from time whereof, &c., no rate or assessment for or towards paying or defraying the expenses of repairing the parish church of Wakefield aforesaid has been mada, laid or assessed upon any person for or in respect of any houses, lands, or tenements, situate within the township of Horbury aforesaid: without this, that the inhabitants of the said townships of Wakefield, Stanley-cum-Wrenthorpe, Alverthorpe-cum-Thornes, and Horbury, in the said declaration mentioned, from time whereof, &c., have been or are liable to contribute to the repairs of the said parish church of the parish of Wakefield aforesaid, in manner and form, Ac. Conclusion to the country. Similiter. On the trial before Lord Lyndhurst, C.B., at the York Summer Assizes 1834, the plaintiff proved that the chapelry of Horbury was within the parish of Wakefield, and paid small tithes and mortuaries to the vicar. The parish clerk of Wakefield, who was called on behalf of the plaintiff, stated, on cross-examination, his belief that Horbury had a church to itself, and that, for twenty-five years, during which he had been clerk, no church rates for the parish had been collected in Horbury; he also [670] stated that the Horbury people did not attend the parish vestry ; that there were in the parish of Wakefield six churchwardens for Wakefield township, one for Stanley, and one for Alverthorpe, but none for Horbury ; and that churchwardens for Horbury were sworn in at the visitations, apart from the Wakefield churchwardens. The defendants called no witness. The Lord Chief Baron was of opinion that the issue was confined strictly to the matter contained under the traverse, that the inducement must be taken as admitted, and that the defendants' case on the issue was proved by the evidence for the plaintiff. He; directed the jury accordingly ; and the defendants had a verdict. In the ensuing term Alexander moved for a rule to shew cause why there should not be a new trial on the ground of misdirection ; or why there should not be judgment non obstante veredicto. The ground for the latter part of the motion was, that the plea, if limited to the matter of the traverse, tendered no sufficient issue, as it did not then put in issue the material facts stated in the inducement, and particularly as it did not allege that all divine rites had been performed at the chapel at Horbury, which was necessary to discharge a district from the reparation of the mother church ; 1 Burn's Eccl. Law, p. 353 (a). A rule nisi having been granted, (a) 8th ed. tit. Church, vi. 8. 940 CRAVEN W.SANDERSON 4 AD. & E. 671. Sir F. Pollock, Sir W. W. Follett, and Joseph Addison, shewed cause in this term (b). The issue is a proper one, and was proved on behalf of the defendants. The declaration alleges that the townships of Wakefield, [671] Stanley, Alverthorpe and...
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