The Right Rev. Henry Hughes, - Appellant; Anthony Porral and Others, - Respondents
| Jurisdiction | UK Non-devolved |
| Judgment Date | 20 June 1842 |
| Date | 20 June 1842 |
| Court | Privy Council |
English Reports Citation: 13 E.R. 216
ON APPEAL FROM THE SUPREME COURT OF GIBRALTAR.
Mew's Dig. tit. Colony, III. Appeals to Privy Council, 1. 4. 6. g.
ON APPEAL FROM THE SUPREME COURT OF GIBRALTAR. The Right Rev. HENRY HUGHES,-Appellant; ANTHONY PORRAL and Others,-Respondents f [May 18, June 20, 1842]. The Vicar-General of the Roman Catholic Church at Gibraltar, is liable to account for the fees received by him for administering the offices of th& Church, such fees being by custom regulated, and subject to the control of the Assembly of Elders or Junta, of which he is the head, and disposed of by * Present: Lord Brougham, Lord Denman, Mr. Justice Bosanquet, and the Right Hon. Dr. Lushington. t Present: Lord Wynford, Lord Brougham, Lord Campbell, the Vice-Chancellor Knight Bruce, and Right Hon. Dr. Lushington. 216 HUGHES V. PORRAL [1842] IV MOORE, 42 them for the general purposes of the Church. Decree granting injunction against the receipt of such fees by the Vicar-General, and directing him to replace in certain parts of the Church, the tariff, or table thereof, varied by dissolving the injunction, and decreeing him only to account as receiver, for all sums paid to him on account of the same [4 Moo. P.C. 60, 61]. This Court has no jurisdiction to direct the release of a party imprisoned for a contempt in the Court below, pending an Appeal respecting the merits of the Suit [4 Moo. P. C. 50]. Evidence not adduced in the Court below or forming part of the transcript admitted on motion to be used at the hearing of the Appeal, subject to all just exceptions [4 Moo. P.C. 51]. This was an. Appeal from the Decree of the Supreme Court, whereby it was ordered that the Appellant [42] should pay to the Kespondent Anthony Porral, as treasurer of the other Respondents, as such body of elders as in the pleadings mentioned, all such fees and monies as he had in his hands, or possession, of the funds, of the Church of Saint Mary the Crowned, of Gibraltar, and that he should pay monthly and every month, all such fees or monies as he should thereafter collect and receive, as the funds of the said Church, to the said Anthony Porral, the treasurer of the Assembly of Elders, or to the treasurer for the time being, of the said Assembly of Elders. That the injunction formerly granted, to restrain the Defendant, his servants, and all other persons whomsoever acting under him, or by his order, from interfering in the management, paying away, or administering the funds of the said Church, be continued. The case, as alleged and set forth in the Plaintiffs' bill, disclosed the following facts:-In 1704, the Town and Fortress of Gibraltar having been conquered by the British arms, was ceded by treaty, and became part of the possessions of the Crown of England. By the treaty of cession, the free exercise of their religion was guaranteed to the Roman Catholic inhabitants. At the period of the place coming into the possession of the Crown of England, there was, and has since continued, a Roman Catholic Cathedral [43] Church, known as the Church of St. Mary the Crowned, of Gibraltar, the chief Minister of which is called the Vicar Apostolic. The Bill then alleged, that from time immemorial, the Cathedral Church, in respect to its secular management, and the application and administration of its temporal affairs, and pecuniary funds and the fees to be paid for the acts of the Church, hath been governed and directed by an Assembly of Elders, called also the Junta ; that the Appellant, who was Vicar-Apostolic, with the Respondents, formed this assembly, the Vicar being- ex-ofjlcio a member and President of the Junta, the other Elders being elected by the lay-members of the Church; that the Vicar was appointed by the authorities at Rome, his stipend or salary being fixed by the Junta, and paid out of the funds of the Church; that the present Appellant came to Gibraltar in January 1840, and had since officiated as Vicar; that on his coming to fill the office, his stipend was fixed, with his concurrence, by the Assembly, at 1200 dollars per annum, and the salaries and pensions of the other acting and retiring clergy and officers of the Cathedral Church were fixed at the same time; that the funds of the Church consisted wholly of the contributions or fees received from individuals, for the performance of the offices of the Church, comprising the administration of baptism, the holy communion, marriage, and burial, together with an allowance of £300 per annum made by the British Government, and paid by Her Majesty's Receiver-General in the colony, by monthly payments; that in 1806, a tariff of fees for the officers of the Church was fixed and agreed upon by the then Vicar-Apostolic and the Junta, copies of which were suspended in conspicuous parts of the Cathedral Church, by [44] which the sums demanded for the several rites were regulated, and had been received by the present Vicar, as well as his predecessors, and by them handed over monthly to the treasurer of the Assembly, for the use of the Church; that in cases of persons being poor, it had been the custom from the earliest times, either partially or wholly to remit the fees; that disputes having arisen between the Appellant and the Respondents respecting the authority of the latter to demand these fees, as well as their right to distribute them, and the table of fees suspended in the Cathedral Church having been removed, as the Junta sup- 217 IV MOORE, 45 HUGHES V. POREAL [1842] posed, by the Vicar-Apostolic, or by his orders, the Appellant, as such Vicar-Apostolic, having refused to pay over the sum collected by him, the Respondents, on the 17th of October 1840, filed their Bill in the Supreme Court of Gibraltar, setting forth the circumstances above stated, and praying for an account of the fees received by the Appellant, from the 1st day of August then last past, or which might have been received, and of his application thereof; that he might be decreed to pay to the Respondent as treasurer of the Assembly of Elders, all such fees and monies as he then had in his hands or possession, and that he might be ordered to put up, and place in their former accustomed places, within the body of the Church, the three tables of fees alleged to have been removed by him, and that he, and all other persons, might be restrained by injunction from administering the monies so collected and received by him, or which might thereafter be collected and received. On the 17th October, an order was made for the Defendant to appear and to answer within eight weeks, which not being complied with, an Injunction was [45] granted on the 6th November, in the terms prayed for. Titie Defendant having appeared and obtained further time, put in his answer on the 4th of January 1841, by which, after denying the iinmemorial custom pleadec by the Plaintiffs touching the right of the Assembly of Elders to exercise the powers and authorities claimed by them, he admitted the allegations respecting his appointment, his payment over of the fees received, and the acts done by him as President of the Assembly of Elders, but insisted that such payments were made and such acts done and assented to in ignorance of the rights claimed by the Plaintiffs; and he further stated by way of plea, that in missionary countries such as England and Ireland, and also Gibraltar, a dominion of the Crown of England, the Bishop, or Vicar-Apostolic, or other superiors nominated and appointed by the holy See of Rome, hath the lawful power to settle and fix the fees or dues payable, and to be paid, as and for...
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...(1910) 11 CLR 63 at 77 78. 184 3 & 4 Will IV c 41. See Mellin v Mellin (1838) 2 Moore 493 at 495 [ 12 ER 1094 at 1095]; Hughes v Porral (1842) 4 Moore 41 at 50 51 [ 13 ER 216 at 220]; Blue & Deschamps v Red Mountain Railway [1909] AC 361 at 365 366; Indrajit Pratap Sahi v Amar Singh (1923) ......