Gosling v Veley
| Jurisdiction | England & Wales |
| Judgment Date | 08 February 1847 |
| Date | 08 February 1847 |
| Court | Court of the Queen's Bench |
English Reports Citation: 115 E.R. 542
QUEEN'S BENCH
Affirmed in Exchequer Chamber, 12 Q. B. 328: reversed in House of Lords, 4 H. L. C. 679; 10 E. R. 627 (with note).
[406] gosling against vkley, and another. [Monday, February 8tb, 1847.] A-monition, founded on an allegation that a parish church was out of repair, issued from an Ecclesiastical Court, requiring the churchwardens to call a vestry for the purpose of making a rate, and the parishioners to meet in such vestry and then and there make a rate for repair of the church and decent celebration of divine service, &e. therein. The churchwardens gave notice of a vestry meeting; (a) 1 Q. B. 209, reversing the decision of the Court of Queen's Bench in Purchell v. Salter, 1 Q. B. 197. 7Q.B.40T. GOSLING V. VELEY 543 and the vestry met, in obedience to the monition ; when the monition and notice were read, and the churchwardens produced a survey and estimate to which no objection was made; nor was the necessity for the repairs, &c. disputed. A rate of 2s. in the pound was then proposed and seconded ; upon which an amendment, stating an objection to church rates in general, and refusing to make any rate, was proposed and seconded, put to the meeting, and carried by a majority. The chairman then asked whether any further proposition as to amount of rate waa made ò to which no affirmative answer was returned. Thereupon the churchwardens and other members of the meeting, being the minority of those present, made a rate. A protest was then delivered on behalf of the majority of those present. The churchwardens proceeded against G., a party so rated, in the Ecclesiastical Court, in a cause of subtraction of church rate, setting forth the above facts in the libel and in the proofs propounded. The libel, &c. having been admitted to proof, G-. declared in prohibition. On general demurrer to the declaration (by which all the facts appeared) : Held, (1) That the persons voting for the amendment must be considered as having declined to join in the proceedings of the meeting, the amendment having no reference to the object for which the vestry waa summoned under monition ; that the persons so voting therefore left the question in the hands of the remainder; and that the rate was legally made. (2) That it was unnecessary again to put the rate formally to the vote, inasmuch as it had been in effect taken into consideration and negatived by the amendment; though it would have been more regular not to put the amendment. Judgment for defendants in prohibition. [Affirmed in Exchequer Chamber, 12 Q. B. 328: reversed in House of Lords, 4 H. L. C. 679; 10 E. R. 627 (with note).] Prohibition. The declaration stated that, whereas the now defendants, heretofore, to wit 10th January 1842, caused and procured a certain process, called a citation, to be issued against the now plaintiff, purporting therein that Charles James, by divine permission Bishop of London, all and singular clerks, &c. did thereby authorize, &c., peremptorily to cite or cause to be cited the now plaintiff, therein described aa a parishioner and inhabitant of the parish of Braintree in the county of Essex and diocese of London, personally or by his proctor duly constituted to appear before the Right Honourable Stephen Lushington, Doctor of Laws, Vicar [407] General and Official Principal of the Consistorial and Episcopal Court of London, lawfully constituted, his surrogate, or some other competent Judge in that behalf, in the common hall of Doctor's Commons, situate, &c., on the 6th day after, &c., at the hour, &c., and there to abide, &c., then and there to answer the now defendants, therein described as the churchwardens of the said parish of Braintree in the county of Essex ;ind diocese of London, in a certain cause of subtraction of church rate, and further to do and receive, &c., at the promotion of the now defendants: averment that, in pursuance of and in obedience to the said process, the now plaintiff duly appeared, &c. ; whereupon the proctor for the now defendants as such churchwardens prayed the said Stephen Lushington, then being the official principal of the same Court, to admit to proof a certain libel, containing amongst other things certain allegations and propositions by way of complaint against him the now plaintiff: that is to say : Thafc the parish churcb of the said parish of Braintree had been for a long time past, and then was, in a dilapidated state, and in urgent need of repair; and that no rate for the repair thereof had been granted or collected since March 1834; and that the majority of the parishioners of the said parish had, from time to time, to wit in the several vestry meetings held respectively on the 22d March 1834, 8th December 1836, and on 2d June 1837, and on a later occasion, as was afterwards in the said libel more particularly pleaded, refused to grant or make a rate proposed by the churchwardens of the said parish, in vestry legally assembled, for the repair of the said church and for providing [408] necessaries for the decent celebration of divine service therein : that, after a rate on the said 2d of June 1837 had been so refused, the churchwardens of the said parish did, on the 10th day of the said month of June, and when the parishioners of the said parish were not in vestry assembled, rate and tax all and every the inhabitants and parishioners of the said parish for and towards the necessary repairs of the church of the said parish, and for and towards certain other purposes: and that, the said churchwardens having subsequently instituted a 544 GOSLING V. 7ELEY 7 Q. B. 409. suit in the said Conaistorial and Episcopal Court of London for subtraction of church rate, to compel Joseph Davey Burder, a parishioner of the said parish, to pay the sum assessed on him in the manner aforesaid, the said last mentioned Court was prohibited from proceeding to enforce payment thereof by a writ of prohibition from Her Msjtsty's Court of Queen's Bench at Westminster: and that the judgment of the said last mentioned Court (directing such writ to issue) was, on 8th February 1841, affirmed by the Court of Exchequer Chamber, sitting in error, and that no writ of error from such last mentioned judgment was then pending: That, on 13th May 1841, at a vestry legally assembled for the purpose of making and granting a rate for the necessary repairs of the said church, and for providing all things necessary for the celebration of divine service therein, and for defraying the expenses necessarily incurred and legally incident to the office of churchwarden thereof for the then current year, the majority of the parishioners, then and there assembled, refused, when thereunto required, to make such rate, notwithstanding that the said church still continued in urgent need of repair, that the church-[409]-wardens had no funds in hand to effect the same, and that a survey and estimate of the said repairs necessary and requisite to be done, and also an estimate of the necessary expenses incident to the office of churchwarden in and for the said parish of Braintree, for the current year, were submitted to the parishioners then and there assembled : That, the said churchwardens of the said parish still continuing to have no funds in band to effect the said repairs, and certain of the matters thereinbefore pleaded having been set forth in an affidavit duly made and sworn to by the Rev. Bernard Scale, clerk, the vicar of the said parish, and brought into and then remaining in the registry of the said Consistorial and Episcopal Court, a decree issued, under seal of the said last mentioned Court, on llth June 1841, at the instance of the said Rev. B. Scale, against the now defendants, the churchwardens, in special, and the parishioners of the said pariah in general, citing them to appear, on the third session of Trinity term, (to wit) Tuesday 22d June 1841, before the vicar general and official principal aforesaid, his surrogate or other competent Judge, to shew cause, if they or either of them had or knew any, why a monition should not issue, under seal of the said last mentioned Court, against them the said churchwardens, to take the necessary stepa towards putting the said parish church of Braintree into repair, and for providing necessaries for the decent celebration of divine service therein, and, amongst other things, to call, by giving due notice thereof according to law, a vestry for a certain day and at a certain place and hour to be specified in such monition, for the purpose of making a rate for and towards the necessary repair of the said church, [410] and for apd towards providing necessaries for the decent celebration of divine service and offices therein, and for and towards the other expenses necessarily and legally incident to the office of churchwarden for the current year ; and against the said parishioner?,, to meet in vestry to be holden in pursuance of such notice on the day and at the place and hour so as aforesaid to be specified in the said monition, and then ami there to make a rate for and towards the purposes aforesaid; and intimating to the parties so cited that, if they or either of them did not appear on the day and at the time and place and to the effect aforesaid, or, appearing, did not shew good and sufficient cause concludent in law to the contrary, the vicar general and official principal aforesaid, his surrogate, &c., did intend and would proceed to decree sucb monition to issue against the said now defendants, and the said parishioners of the said parish: that the said decree was duly executed, and was, on the third session of Trinity term, to wit on Tuesday the 22d day of the said last mentioned month of June,, returned into Court, and that an appearance was then and there given thereto by and on behalf of the now defendants, who, it was then alleged, were ready and willing to submit themselves to the lawful orders and commands...
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HM Revenue and Customs v Total Network SL
...any other Manner then the same is or shall be granted, is illegal.” 27 Mr Flint has referred us to a number of authorities. The first is Gosling v Veley (1850) 12 Q.B. 328, 407 where Wilde C.J. held: “The rule of law that no pecuniary burden can be imposed upon the subjects of this country......
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HM Revenue and Customs v Total Network SL
...Appeal did not, of course, question the fundamental constitutional principle. Ample support for it is to be found in the authorities. In Gosling v Veley (1850) 12 QB 328, 407, Wilde CJ said: "The rule of law that no pecuniary burden can be imposed upon the subjects of this country, by what......
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