The King against Marsh
| Jurisdiction | England & Wales |
| Judgment Date | 23 January 1837 |
| Date | 23 January 1837 |
| Court | Court of the King's Bench |
English Reports Citation: 111 E.R. 1243
IN THE COURT OF KING'S BENCH.
S. C. 6 N. & M. 68; 2 H. & W. 255. Applied, R. v. Green, 1874, 30 L. T. 258; 31 L. T. 547; St. Sepulchre (Vicar) v. St. Sepulchre (Churchwardens), 1879, 5 P. D. 69.
the king against marsh. (case of alkington poor rate.) Monday, June 13th, 1836. A parish was divided into four tithings, A., B., C., and D., A. containing the parish church. Each tithing maintained its own poor, and each had a churchwarden, elected at a vestry of the parish in general, but from and by its own inhabitants. The minute of appointment included all the four, and stated them to have been nominated to serve the office of churchwardens for the tithings for the year ensuing. All were sworn in together at the archdeacon's visitation, the oath being administered to them and each of them, " truly to execute the office of churchwarden within your parish." None ever acted out of his own tithing, unless in signing the annual presentments to the archdeacon of the state of the church, &c. Each of the tithings (except A., which was exempt) raised its own church rate, and paid it to the vestry clerk; and ha kept a separate account for each churchwarden, who accounted with the inhabitants of his own tithing. A. commissioner of inclosure under a local Act and the general Act, 41 G. 3, c. 109, s. 3, made an order settling the boundaries between the above parish and another parish adjacent, and adjudging certain lands to be in the latter; and he, within a month, served a description of the boundaries on a party then acting as churchwarden of tithing A. Until the order, the lands in question had been rated to tithing B. On appeal against a poor rate made upon the above lands as siluate in tithing B., notwithstanding the commissioner's order : Held, that the description of boundaries had been sufficiently served according to the proviso of stat. 41 G. 3, c. 109, s. 3, requiring such description to be served upon " one of the churchwardens or overseers of the poor of the respective parishes." Although the party served had finished his year of office, but continued to do the duties, because his successor had not been sworn in or acted. Held, also, that the sessions had acted rightly in rejecting evidence offered to shew that the commissioner, in his inquiry into the boundaries, had not conducted his examination in the manner required by stat. 41 G. 3, c. 109, s. 3. [S. C. 6 N. & M. 668 ; 2 H. & W. 255. Applied, R. v. Green, 1874, 30 L. T. 258 ; 31 L. T. 547 ; St. Sepulchre (Vicar) v. St. Sepulchre (Churchwardens), 1879, 5 P. D. 69.] On appeal by John Marsh against a poor-rate for three pieces of land, signed by the churchwarden and overseers of the poor of the tithing of Alkington, in the parish of Berkeley, the sessions confirmed the rate, subject to the opinion of this Court on the following case. [469] The question was whether the lands were in the tithing of Alkington, or in the parish of Leonard Stanley. Up to 17th November 1832 they had been rated to Alkington. An Act was passed, 11 G. 4 (c. 7, private), (which was to be taken as part of this case) for the inclosure, inter alia, of lands in the parish of Leonard Stanley ; and it recited the General Inclosure Act, 41 G. 3, c. 109. The commissioner appointed under it made the following determination, with reference to the boundaries of the parishes of Berkeley and Leonard Stanley, on the 17th of November 1832. " Whereas by an Act passed "11 G. 4, " entitled An Act for Enclosing Lands in the Parishes of Stanley St. Leonard's, otherwise Leonard Stanley, and Eastington, or one of them, in the County of Gloucester, and for Discharging from Tithes Lands in the said Parish of Stanley St. Leonard's otherwise," &c., " I, the undersigned Daniel Trinder, was appointed commissioner for carrying the said Act into execution ; and whereas disputes or doubts having arisen whether certain old inclosures called respectively the Ham, the Langett, and Motford, (all of which are part of the estate of the Rev. Thomas Heberden, and are in the occupation of John Marsh, as his tenant,) are parcel of the parish of Stanley St. Leonard's, otherwise," &c., " or of the parish (a) No costs of either rule were given. 1244 THE KING V. MARSH 5 AD. ft B. 470. of Berkeley: I the said D. T., in pursuance of the powers and in compliance with the provisions contained in the said Act and the therein recited Act, have ascertained the boundaries of the said parishes respectively where they adjoin each other: Now, therefore, I the said D. T. do hereby set out, determine, and fix that the said inclosures respectively [470] are parcel of the parish of Stanley St. Leonard's, otherwise," &c., " and that the boundary fences of the aaid inclosures respectively are the boundaries between the said parish of Stanley St. Leonard's, otherwise," &c., "and the said parish of Berkeley, where they adjoin each other. " (Signed) daniel trinder." The sessions thought that under stat. 41 G. 3, c. 109, s. 3 (a)1, it was necessary to have proof that the means of appeal had been afforded by a due service of the descriptions of boundaries as therein provided, but that, if this were done, no appeal having ever taken place, they could not now enquire by what means and through what steps the commissioner had arrived at his decision ; and they interrupted evidence which had been commenced on that point, particularly as to his having examined witnesses without oath, and as to whether there had been any disputes, before his perambulation commenced, concerning the boundaries in question. With regard to the proper services of the description of boundaries : Berkeley parish is divided into four tithings, Berkeley town, Alkington, Ham, and a fourth composed of Hinton, Hamfallow, arid Breadstone. There is but one church, which is in Berkeley, and one chapel of ease, which is in Ham. Each of the tithings has separate poor-rates, and manages its poor separately, and removes paupers from one tithing to another. Berkeley, Alkington, and Ham have each one churchwarden and two overseers. Hinton and Hamfallow have one overseer each, and Breadstone two, and there is one churchwarden for the three. The churchwardens [471] for all are appointed at Berkeley. The following is the form of the appointment. At a vestry meeting held in the vestry room of the parish church of Berkeley, this day of , the following persons were nominated as proper persons to serve the office of churchwardens for the town and tithings for the year ensuing, viz. A. B., C. D., E. F., G. H. In the presence of us (here follow the names of the parishioners assembled in vestry). The outgoing churchwarden generally nominates his successor for the same tithing ; but, in case of dispute, inhabitants of one tithing do not vote in the election of the churchwarden of another. None are chosen churchwardens of either of the tithings but such as are inhabitants of that particular tithing. Berkeley church is repaired by church rates levied separately on the tithings. The description of boundaries was served, 23d November 1832, by the commissioner, duly as regarded the parish officers of Leonard Stanley and the lords of the manors, but not on any churchwarden or overseer in respect of Alkington as distinct from the rest of the parish of Berkeley. It was served on one Seaborne, who had been duly elected churchwarden of Berkeley town for the preceding year, but whose original year of office was expired, and who continued to act in consequence of the person appointed as hia successor not having been sworn in, or served. The questions were, 1. Whether the Quarter Sessions ought to have received evidence as to the steps taken by the commissioner, and the other circumstances prior to his adjudication : 2. Whether they were entitled to require proof of the due service of the de-[472]-scription of boundaries 1 3. Whether, if so, service on the churchwarden of Berkeley was sufficient ? 4. Whether Seaborne could be considered as such churchwarden 1 The ease came on for argument in last Hilary term (a)2. Sir J. Campbell, Attorney-General, and Greaves, in support of the order of sessions. The rate is correctly imposed on the appellant's lands as lying in Alkington, unless it be conclusively shewn that the commissioner made a valid order, fixing them in Leonard Stanley. He acted on a limited authority, and was bound (upon the principle recognised in Bruyeres v. Halcomb (3 A. & E. 381)), to perform strictly the conditions under which it was to be exercised). The authority in question is given, and the (a)1 See page 472, note (c), post. (a)2 January 27th. Before Lord Denraan C.J., Littledale, Williams, and Coleridge Js. 6AD.4B.473. THE KING V. MARSH 1245 conditions prescribed, by stat. 41 G. 3, c. 109, s. 3 (c). Then, first, the order is void, [473] as it does not shew, on the face of it, that the conditions have been fulfilled; Hex v. Groke (1 Cowp. 26). Secondly, if this be not so, still the parties relying on the order were bound to prove the performance of all the conditions. And, thirdly, at all events, the opposing party was at liberty to impeach the proceedings, by shewing that the directions of the statute had not been complied with, so as to make the act of the commissioner a lawful exercise of jurisdiction ; Welch v. Nash (8 East, 394). But the appellant, here, was prevented from giving evidence for that purpose. The description of boundaries in this case was not served upon one of the "churchwardens or overseers" of the poor of Alkington, as it ought to have been. The only service was on Seaborne, who had been churchwarden of Berkeley town. Alkington was a district separately maintaining its own poor, and for the present purpose a distinct parish. And Seaborne was not even churchwarden of Berkeley town at the time of the service. [474] W. J. Alexander and Cripps, contra, were then called upon by the Court aa to the service. Stat. 41 G. 3...
To continue reading
Request your trial
-
O'Brien (in Error) v The Queen
...ReginaELR L. R. 1 Q. B. 289, 390. Rex v. RoyseENR 4 Burr. 2085. Lee's CaseENR Yelverton, 69. Aylett's CaseENR 4 East. 176. Marsh's Case 6 A. & E. 236. Mellor's CaseENR Dea. & Bell, 468. Toe v. AdlamENR Andrews' Reports, 160. See alos Bedingfield v. Beresford, 2 Lev. 83. Mr. Justice Maule 8 ......
-
Faulkner's Case by Indictment of Easter Term
...Bex v. Kilderby, 308, note (2). (a) See these cases in the note to 4 East, 176, The King v. Barley. [See also 6 A. & E. 247, note (a). 6 A. & E. 236, Rex v. Marsh. 6 Nev. & M. 668, S. C. accord.] The names are always inserted in cases of treason. English Reports Citation: 85 E.R. 292 COURT......
-
Bray, Appellants, Somer, Respondents
...into office, I entertain [377] some doubt. That matter was not fully discussed in the case cited from Ventris." In The King v. Marsh (5 A. & E. 468) service of notice on a person who continued to do the duties of the office of churchwarden of a tithing after the year of his office had expir......
-
The Queen against Hague
...The conviction is bad for not shewing that the election was duly held. [He referred to the form of the indictment in Sex v. Marsh (6 A. & E. 236, 250, note (a)).] [Crompton J. The putting iu the first count there could do no harm; feut it was only an idea of the pleader. Blackburn J. In Meg......