Gosling v Veley and Another
| Jurisdiction | England & Wales |
| Judgment Date | 22 January 1850 |
| Date | 22 January 1850 |
| Court | Exchequer |
English Reports Citation: 116 E.R. 891
IN THE EXCHEQUER CHAMBER.
Reversed in House of Lords, 4 H.L.C. 679; 10 E.R. 627 (with note).
in the exchequer chamber. (error from the queen's bench.) gosling against veley and another. [Tuesday, January 22d, 1850.] A monition, founded od 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 veatry and then and there make a rate for repair of the church and decent celebration of divine serviee, &a therein. The churchwardens gave notice of a vestry meeting; and the vaatry 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, 892 GOSLING V. VBLEY 13 Q. B. 329. 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 was made; 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 cauae 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, by the Court of Exchequer Chamber, affirming the judgment of the Court of Queen's Bench : (1) That the persons voting for the amendment must be considered aa having declined to join in tie proceedings of the meeting, the amendment having no reference to the object for which the vestry was summoned under monition; that the persona 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. Judgment for defendants in prohibition. Per Maule and Gresswell Js., and Alderson and Platt Bs. Dissentientibus, Wilde C.J. and Parke and Eolfe Bs. j[Eeversed in House of Lords, 4 H. L. C. 679; 10 E. K. 627 (with note).] Prohibition by the plaintiff in error against the defendants in error. By the declaration, the following facts appeared (a)1. [329] A monition, founded on an allegation that the parish church of Braintree in Essex was out of repair, issued from an Ecclesiastical Court, requiring the churchwarden! 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, &c., therein. The churchwardens gave notice of a vestry meeting; and the vestry met, in obedience to the monition, when the monition and notice were read, and the-church wardens produced a survey and estimate to which no objection was made; nor was the necessity for the repairs, &gj disputed. A rate of 2s. in the pound was then proposed and seconded; upon which an amendment, slating an objection to church rates in general, and ref using _to make any rate, was proposed and seconded, put to the meeting, and carried by a majority. The chairman then asked whether auy further proposition aa to amount of rate was made; 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. TMe churchwardens proceeded against Gosling, 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, Gosling declared in prohibition against the churchwardens. The defendants below demurred generally to the declaration. Joinder. Judgment was given, in the Queen's Bench, for the defendants below (a)2k [380] 'The: plaintiff below then brought error in th& Exchequer Chamber. Joinder in error. The case was argued in Trinity and Michaelmas vacations, 1848 (a)3, by Hill for the plaintiff in error, and Sir Frederick Thesiger for the defendants in error (b). Cur. adv. vult. The Court being divided in opinion, the learned Judges (c) now delivered their judgments seriatim. (a)1 The declaration is more fully set in Gosling v. Veley (7 Q. B. 406). And see the judgments of Platt B., pp. 330-334; and of Cresswell J., pp. 337-342, post. (a)s Gosling v. Feky, 1 Q. B. 406. (a)8 June 17th, and November 27th and 28th. (J) It is considered that the arguments and authorities may be sufficiently collected from the report of the case below, and from the judgment pronounced in the Court of Error. (c) Coltmaii J. died between the conclusion of the argument and the delivery of the judgments. 11 Q. E SSI. GOSLING V. VELEY 893 Platt B. Thas was a writ of error brought on a judgment pronounced by the Court of Quean'a Bench on demurrer to a declaration in prohibition. The declaration stated that the defendants caused tbe plaintiff, a parishioner and inhabitant of the parish of Braintree, in the county of Essex and diocese of London, to appear before the Judge of the Consistorial and Episcopal Court of London, to answer the defendants, who, in the citation, were described as the churchwardens of the said pariah of Braintree, in a cause of subtraction of church rate. That the plaintiff appeared, and the defendants prayed the said Judge to admit to proof a certain libel; in which it was alleged: that the said parish church had been for a long time past, and then was, in a dilapidated state, and that, at several vestry meetings, the majority of the parishioners had refused to make a rate : that a decree, at the instance of the vicar of the said parish, issued, under the seal of the said [331] Consistorial and Episcopal Court, against the defendants and the parishioners in general, citing them to appear before the said or other competent Judge, to shew cause why a monition should not issue against the churchwardens to take the necessary steps towards putting the said parish church into repair, and for providing necessaries for the decent celebration of divine service therein; and, amongst other things, to call, by 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, and for and 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 parishioners, to meet in vestry to be holden in pursuance of the said notice, and make at such meeting a rate for the aforesaid purposes; and intimating to the cited parties that if they did not appear, or, appearing, did not shew sufficient cause to the contrary, the Judge would proceed to decree such monition to issue: that the said decree was duly executed: that an appearance was, at the return, given by the defendants only, who were willing to submit themselves to the commands of the said Court: that thereupon, the proceedings being continued to the next Court, the Judge decreed a monition to issue against the defendants in special, and all and singular the parishioners of the parish of Braintree in general, to the tenor and effect of the said decree : that the monition accordingly issued, and was duly served and returned. The libel then alleged that, the [332] said church continuing in urgent need of repair, and the churchwardens having no funds in hand to 'effect the repairs, the churchwardens and the parishioners and inhabitants, ratepayers of the parish, did, on 15th July 1841, meet in vestry, pursuant to public notice duly given, and in obedience to the monition aforesaid; at which meeting the vicar took the chair : that the aforesaid monition was read; and the defendants, the churchwardens, produced a survey and estimate of the repairs necessary to be immediately done to the parish church, and of the expenses thereof, and an estimate of the necessary and lawful expenses incident to the execution of their office for the current year: that the necessity of the repairs was not disputed ; nor was any objection made to the amount of the estimates: that the defendant Veley proposed to the parishioners, so assembled in vestry, a rate of 2s. in the pound for the aforesaid purposes : that that proposition was seconded by Richard Lacey, a parishioner and inhabitant ratepayer of the parish : that thereupon Samuel Courtauld moved, as an amendment: " That all compulsory payments for the support of religious services of any sect or people appear to the majority of this vestry to be unsanctioned by any portion of the New Testament Scriptures, and altogether opposed to and subversive of the pure and spiritual character of the religion of Christ: but that, for any one religious sect to compel others which disapprove their forms of worship or system of Church government, o? which dissent from their religious principles and creeds, to nevertheless submit to support and extend them, appears to this vestry to be a yet more obvious invasion of religious freedom, and viola-[333]-tion of the rights of conscience; while also it appears to be a gross injustice to dissenters, as citizens, to...
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