The Queen against Baines
| Jurisdiction | England & Wales |
| Judgment Date | 28 November 1840 |
| Date | 28 November 1840 |
| Court | Court of the Queen's Bench |
English Reports Citation: 113 E.R. 792
IN THE COURT OF QUEEN'S BENCH.
the queen against baines. [Saturday, November 28th, 1840.] A writ de con-tumace capiendo, under stat. 53 G. 3, c. 127, s. 1, for disobeying the monition of the Arches Court, may issue on a significavit from the official principal. If the writ purport to have issued against defendant for not paying a sum of money and costs, according to the monition of the Arches Court, the proceedings being carried on in pain of the contumacy of defendant, duly cited to appear in the cause, &c., with the usual intimation, but not appearing, this Court will not discharge him on habeas corpus. For a practice of the Ecclesiastical Court to give judgment against a party on such non-appearance may be legal; and, if no such practice exists, the party should appeal. The writ shews sufficiently that the Ecclesiastical Court had jurisdiction, if it state that defendant was contumacious in not paying the churchwardens of St. M. the sum of two pounds (6) The reporters are favoured by Dr. Curteis with the following note. Arches Court of Canterbury. Trinity Term, 1839. Hawes and Vicat against Pellatt. [S. C. 1 Curt. 473. Referred to, Asterley v. Adams, 1871, L. R. 3 Ad. & E. 368.] This was a cause of subtraction of church rate, brought by Hawes and Vicat, the churchwardens of the parish of Christ Church, Surrey, against Mr. Apsley Pellatt,. a parishioner, by letters of request from the commissary of the Bishop of Winchester for the parts of Surrey within that diocese. Mr. Pellatt appeared to the citation, under protest, and prayed to be dismissed from the suit, on the ground of his having been cited out of his diocese, contrary to-stat. 23 H. 8, c. 9. The Court (Sir Herbert Jenner) overruled the protest with costs, and directed Mr. Pellatt to appear absolutely. The case came before the Court in Michaelmas term 1839 and Trinity term 1840, on other paints, and will be reported in vol. 2, part 2, of Dr. Curteis's Reports. (a) See Eegina v. Baines, post, 210, 229. 12AD.sB.m. THE QUEEN V. BAINES 793 five shillings " rated and assessed " upon him, and coats, pursuant to a monition, &c. " in a certain cause or business of subtraction of church rate " depending, &o. The form of a writ de contumace capiendo, given by stat. 53 G. 3, c. 127, Scbed. (B), addressed "To the Sheriff of ," describes the contumacious party aa " of , in your county of ." Quaere, whether a writ describing the defendant as " W. B. of the Market Place, in the borough of Leicester, hatter, a parishioner and inhabitant of the parish of St. M., in the said borough of L., in the county of Leicester," sufficiently complies with the statute. But, Held, upon motion for discharge on habeas corpus, that the alleged variance could not be taken advantage of on a return setting out the writ, though the motion was supported by an affidavit verifying a copy of the writ; for that the proper course was to move that the writ itself might be set aside for irregularity. It is no objection to the writ, that it purports to have been delivered of record to the sheriff in the Court of Q. B., but does not appear to have been " opened " at that time, pursuant to stat. 5 Eliz. c. 23, s. 2. [S. C. 4 P. & D. 362; 10 L. J. Q. B. 34 ; 5 Jur. 337. Referred to, Martin v. Mackonochie, 1878-81, 3 Q. B. D. 758; 4 Q. B. D. 697; 6 App. Gas. 424; Londm County Council v. Dundas, [1904] P. 28.] A habeas corpus issued in Michaelmas term, 1840, to the Sheriff of Leicestershire, to bring up the body of William Baines, who had been committed to the gaol of that county, with the cause, &c. The sheriff, in the same term, made the following return. [211] "I," &c. "do humbly certify," &c., "that, before the said writ came to me (that ia to say) on the 13th day of November in the year within written, William Baines in the said writ named was taken, and in Her Majesty's gaol for the said coutity under my custody is detained, by virtue of Her Majesty's writ de contumace capiendo, the tenor of which said writ follows in these words, to wit. Victoria, by the grace," &c., " to the Sheriff of Leicestershire, greeting. Herbert Jenner, Knight, Doctor of Laws, Official Principal of the Arches Court of Canterbury, lawfully constituted, hath signified to us that one William Baines, of the Market Place, in the borough of Leicester, hatter and hosier, a parishioner and inhabitant of the pariah of St. Martin in the said borough of Leicester, in the county of Leicester, is manifestly contumacious, and contemns the jurisdiction and authority of the law and jurisdiction ecclesiastical, in not obeying the lawful commands to pay or cause to be paid to William Fox, the proctor of William Jolly and William Berridge, the churchwardens of the said parish of St. Martin, the sum of 21. and 5s. of lawful money of Great Britain, rated and assessed upon him, and the sum of 1251. and 3s. of lawful," &c., "being the amount of costs on their behalf duly taxed and moderated, pursuant to a monition duly issued under seal of the said Arches Court, and duly and personally served on him the said William Baines for that purpose, and duly returned into the said Arches Court with a certificate and affidavit of the execution thereof, of the said Herbert Jenner, Knight, Doctor of Laws, Official Principal of the Arches," &o., "lawfully authorized, by not paying or causing to be paid to the said William Fox, the proctor of the said William Jolly [212] and William Berridge, the said suras of 21. and 5s., and 1251. and 3s., of lawful," &c., "pursuant to the said monition, on a day and hour now long past, in a certain cause or business of subtraction of church rate depending before the said Herbert Jetiner, Knight, Official Principal," &c., "in judgment, by virtue of letters of request from the worshipful Christopher Hodgson, Master of Arts, Commissary of the Right Reverend Father in God, John by divine permission Lord Bishop of Lincoln, in and for the archdeaconry of Leicester lawfully constituted, between the said W. J. and W. B., churchwardens of the said parish of St. M. in the borough of Leicester, in the county, archdeaconry, and commissaryship of Leicester, in the diocese of Lincoln and province of Canterbury, the parties promoting the said cause or business, of the one part, and the said William Baines of the Market Place, in the borough of Leicester aforesaid, hatter and hosier, parishioner and inhabitant of the said parish of St. Martin, the party against whom the said cause or business was promoted, on the other part, and the proceedings wherein were carried on in pain of the contumacy of the said William Baines duly cited to appear in the said cause or business, and also duly cited to see proceedings 794 THE QUEEN V. BAINES 12AD.ftB.Z13. thereon, with the usual intimation, but in no wise appearing, nor will he submit to the ecclesiastical jurisdiction. But, forasmuch as the Koyal power ought not to be wanting to enforce such jurisdiction, we command you that you attach the said William Baines by his body until he shall have made satisfaction for the said contempt; and how you shall execute this our precept notify unto us on the llth day of January next, wheresoever we shall then be in England ; and in nowise omit this; and have you [213] there this writ. Witness ourself at Westminster, the 12th day of November, in the fourth year of our reign. " bentall." This writ is allowed, enrolled, and delivered of record before our lady the Queen at Westminster, of Michaelmas term, in the fourth year of the reign," &c., " according to the form of the statute in such ease made and provided. In Court, by Le Pipre, 12th of November, 1840. And these are the causes of the taking and detaining the said William Baines, which together with his body I have ready as by the said writ I am commanded." The return being in Court, Sir J. Campbell, Attorney-General, moved that the prisoner might be discharged. He put in affidavits, verifying copies of the significavit and writ de contumace capiendo. The motion was supported by Sir J. Campbell, Attorney General, Hill, Baines, and Mellor(a)1. The return discloses several objections to the commitment. First, the significavit ought to have been issued by the archbishop, not by the official principal. The writ de contumaee capiendo is substituted by stat. 53 G. 3, c. 127, s. 1, for the writ de excommunicato capiendo : that was a proceeding to enforce an ecclesiastical censure; the sentence of excommunication was spiritual; [214] and the...
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