The King against The Rector and Churchwardens of Birmingham
| Jurisdiction | England & Wales |
| Judgment Date | 10 June 1837 |
| Date | 10 June 1837 |
| Court | Court of the King's Bench |
English Reports Citation: 112 E.R. 467
IN THE COURT OF KING'S BENCH
S. C. 1 Jur. 754. Distinguished, Ex parte Mawby, 1854, 3 El. & Bl. 721.
[254] the king against the rector and churchwardens of birmingham. Saturday, June 10th, 1837. One of two candidates for the office of churchwarden was elected at a vestry, and subscribed the declaration of office, but the election was alleged to have been so improperly conducted that the proceedings were void. To give the parties impugning the election an opportunity of trying its validity, the Court (considering a prima facie case to be presented) granted a mandamus, calling on the rector and churchwardens to convene a vestry for electing a churchwarden for the remainder of the year. At an election in vestry, where the right of voting is regulated by Sturges Bourne's Act, 58 G-. 3, c. 69, s. 3, it is no objection to the proceedings that the chairman directed a poll without first taking a shew of hands: although a shew of hands was demanded, and the poll was not demanded, but was objected to. Per Lord Denman C.J. and Littledale J. [S. C. 1 Jur. 754. Distinguished, Exparte Mawby, 1854, 3 El. & Bl. 721.] A rule was obtained in this term, calling upon the rector and churchwardens of (a) 2 Nev. & M. 440. See p. 246 note (d), ante. 468 THE KING V. THE RECTOR, ETC., OP BIRMINGHAM 7 AD. & B. 265 the parish of Birmingham to shew cause why a mandamus should not issue commanding them, or such of them to whom the same should of right belong, to convene a meeting in vestry of the inhabitants for the election of a churchwarden of the said parish for the remainder of the present year; cause to be shewn on notice of the rule given to the rector, and to the churchwardens and overseers, or some of them, and to James Brown. It appeared, by the affidavits in support of the rule, that, on Easter Monday last, the rector and parishioners met in vestry, according to custom, to elect two churchwardens. The rector took the chair, and, as he was entitled to do, nominated one churchwarden. Two other persons were then proposed and seconded as candidates for the remaining office of churchwarden, which was in the appointment of the parishioners; and the rector was called upon (in pursuance of an alleged custom) to take a shew of hands upon the question which candidate should be appointed. He refused, assigning, as a reason, that the provisions of stat. 58 G. 3, c. 69, applied to this election, and were inconsistent with the proceeding by shew of hands ; and he gave directions for a poll, which was forthwith taken, although, as these [255] affidavits stated, no...
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