The King against The Church Trustees of St. Pancras
| Jurisdiction | England & Wales |
| Judgment Date | 26 January 1837 |
| Date | 26 January 1837 |
| Court | Court of the King's Bench |
English Reports Citation: 111 E.R. 517
IN THE COURT OF KING'S BENCH.
S. C. 5 N. & M. 219. For subsequent proceedings see 6 Ad. & E. 314.
[535] the king against the church trustees of st. pancras. Saturday, June 6th, 1835. A mandamus to account before auditors under the Vestry Act, 1 & 2 W. 4, c. 60, recited that the auditors "duly appointed and acting under and by virtue of an Act," &c., " in exercise of the powers given to them by the said Act," had summoned the parties to account. Held that, in a mandamua for this purpose, it was not necessary to state more fully the adoption of the Act by the parish, and the due appointment of the auditors. The statute enacts that the auditors "shall meet twice at least in each year, at the board room of the vestry, and (a majority of the said auditors being present at such meetings)" shall audit the accounts of such vestry ; and the vestry are required, " at every such meeting," to produce a true account in writing, &c. And the auditors are to have the same power of examining the accounts of certain other boards, and are to audit them in the same manner. A mandamus issued calling upon a board to attend with, and produce to the auditors, their accounts, at such time and place, or at such times and places, as a majority of the auditors might appoint, and then and there give such information as to the accounts as they might be enabled to give, according to the directions of the Act. On return to such mandamus, and concilium obtained on the part of the Crown : Held, that the mandamus exceeded the authority given by the Act; and that the Court could not in part enforce it, by a peremptory mandamus limited as to the place of meeting. And the Court quashed the mandamus. The Court will, for the purposes of justice, mould the rule for a mandamus; but will not mould the writ itself, on a similar clause, limiting the duties to 15s,, and 11. 10s. The stat. 44 G. 3, c. 98, repealed the duties granted by 37 G. 3, c. Ill, and (Sched. A) fixed the duties on indentures of apprenticeship as follows:-" Indenture of apprenticeship, where the sum or value given, paid, contracted, or agreed for, with or in relation to such apprentice shall not exceed 101., 15s.;" "exceeding 101., and not exceeding 201., 11. 10s." &c. (a) See 2 Dwarris on Statutes, 772. 518 THE KING V. CHURCH TRUSTEES OF ST. PANCRAS 3 AD.& E. 836. application for a peremptory mandamus. When a return to a mandamus is made, and a concilium obtained, the counsel objecting to the return must be heard first, though the opposite counsel take au objection to the form of the mandamus. [S. C. 5 N. & M. 219. For subsequent proceedings see 6 Ad. & E. 314.] By the Act for the better regulation of vestries, and for the appointment of auditors of accounts in certain parishes, 1 & 2 W. 4, c. 60, provision is made (s. 33) for the election of certain auditors ; and by sect. 34 it is enacted as follows :-"That the aforesaid auditors of accounts shall meet twice at least in each year, at the boardroom of the vestry, and (a majority of the said auditors being present at such meetings) shall proceed to audit the accounts of the said vestry for the preceding half year, in presence of the vestry clerk; and the said vestry are hereby required, by their said clerk, to produce and lay before the said auditors at every such meeting a true and just statement or account in writing, accompanied with proper vouchers, of all sums of money which may have come to the hands of the said vestry or of their treasurer, and also of all monies paid, laid out, or expended by them, or by any churchwardens, overseers, surveyors, or other persons, by them employed, and responsible to the said vestry, [536] since the last period up to which the accounts of the said vestry were audited ; and in all parishes in which other boards shall have controul over any part of the parochial expenditure, the said auditors shall have the same power of examining the accounts and officers thereof as of examining the accounts and officers of the vestry, and shall audit the accounts of the said boards in the same manner as they audit the accounts of the said vestries." Sect. 35 enacts, "That the said auditors shall have power to summon and call before them, by a writing for that purpose signed by any one of them, or by the clerk of the vestry of any parish adopting this Act, any parish officer or other person or persons whatsoever concerned in the said accounts, arid to require of him or her or them to attend the said auditors at any meeting or adjourned meeting, and to bring with them all books of accounts, writings, papers, and documents required, which may concern the said accounts, and to give such information as to the particulars of such accounts, as he, she, or they shall be enabled to give; and any parish officer or other person refusing so to attend, or otherwise wilfully obstructing the purposes of such inquiry, shall be deemed guilty of a misdemeanor." By stat. 56 G-. 3, c. xxxix. (local and personal, public), for building a new parish church and a parochial chapel in the parish of St. Pancras, Middlesex, &c., certain persons, and their successors, to be nominated and elected as was after-mentioned, were appointed trustees for putting the Act in execution, and were invested with powers of levying rates and laying out the monies so raised. Further powers of a like nature were also given them by a subsequent Act, 1 & 2 G-. 4, c. xxiv. (local and personal, public). [537] In Easter term, 1834, the Court made a rule absolute (a) fora mandamus calling upon the trustees by their clerk to lay before the auditors of the said parish elected under 1 & 2 W. 4, c. 60, pursuant to the said Act, the accounts kept by them under the said Acts of 56 Q. 3, and 1 & 2 G. 4, as trustees as aforesaid, at a meeting or adjourned meeting of the said auditors at the board-room of the vestry of the said parish, and also calling upon their said clerk to attend the auditors at such meeting or adjourned meeting, and bring with him the books of accounts, &c., and to give such information as to the said accounts as he might be enabled to give. The mandamus issued, addressed to the trustees and to their clerk or clerks; and it recited "That the auditors of accounts of the parish of St. Pancras, duly appointed and acting under and by virtue of an Act" (1 & 2 W. 4, c. 60) "heretofore, to wit, on," &c., " in exercise of the powers given to them by the said last-mentioned Act, did, by a writing for that purpose, signed by three of them the said auditors, summon and require you the clerks to the said trustees to come before and attend at a meeting of the auditors of accounts of the said parish at a certain time and place in the said writing specified, and to bring with you and produce to the said auditors at such meeting the book or books containing the account," &c., and then and there to give such information, &c.; and that the said clerks ought to have complied with such (a) The proceedings on the application for this rule are not here reported, as the question respecting the liability of the trustees to account before the auditors under stat. 1 & 2 W. 4, c. 60, is still depending. SAD. &B.B38. THE KING V. CHURCH TRUSTEES OF ST. PANCRAS 519 summons, bub had neglected and refused [538] so to do. The writ then commanded the said trustees and the said clerk or clerks as follows :-" That you, or such of you as shall be thereto required, do attend with and produce to the auditors of accounts of the said parish of St. Pancras, acting under the said Act of Parliament passed in the second year of our reign, the book or books containing the account or accounts of all monies received and of all monies paid between Lady-Day and Michaelmas-Day 1833, by or on account of the said trustees under and by virtue of the said two first-mentioned Acts of Parliament, at such time and place, or at such times and places, as a majority of the said auditors may appoint and give notice thereof to the clerks of the said trustees, and then and there give such information as to the particulars of such accounts aayou the said trustees and you the aaid clerk or clerks may be enabled to give according to the directions of the aaid Act passed," &c., "or that you shew us cause to the contrary thereof." The writ was not obeyed, and a return was made, excusing the non-compliance. A concilium having been moved for, and the case set down in the Crown paper. Sir John Campbell, Attorney-General, was now heard against the return (a). Platt, contra, took four objections to the mandamus, of which two only are material here, as having been decided upon by the Court. First, the authority of the auditors does not sufficiently appear by the writ, which [539] only recites that "the auditors, duly appointed and acting under and by virtue of " the Act (1 & 2 W. 4, c. 60), did summon and require the clerks to attend. It does not shew that the Act was ever legally adopted by the parishioners. The first eight sections of the Act state the proceedings to be taken for the purpose of adopting it in any parish, concluding with a notice of adoption ; and sect. 10 enacts, " That in any parish in which public notice of the adoption of this Act in the manner as aforesaid shall be so made and given, this Act shall immediately become the law for electing vestry-men and auditors of accounts of the said parish in manner hereinafter mentioned." The mandamus passes over all these steps, and merely speaks of the auditors as " duly appointed.' In Bex v. The Bishop of Oxford (7 East, 345), the Court quashed a mandamus which called upon the bishop to license J. K. to be chaplain or curate of the church or chapel of P., alleging that he had been duly nominated and appointed by the...
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