Veley and Another against Burder
| Jurisdiction | England & Wales |
| Judgment Date | 08 February 1841 |
| Date | 08 February 1841 |
| Court | Court of the Queen's Bench |
English Reports Citation: 113 E.R. 813
IN THE COURT OF QUEEN'S BENCH.
S. c. 4 P. & D. 452; a Arn. & H. 175; 5 Jur. 1013. Referred to Mayor of London v. Cox, 1867, L. R. 2 H. L. 270; Mackonochie v. Penzance, 1881, 6 App. Cas. 445.
[265] in the exchequer chamber. (error from the queen's brnch.) veley and another against burder (a)1. [Monday, February 8th, 1841.] See marginal note, ante, p. 233. [S. C. 4 P. & D. 452; 1 Am. & H. 175; 5 Jur. 1013. Referred to, Mayor of London v. Cox, 1867, L. R. 2 H. L. 270; Mackmodiie v. Penzance, 1881, C. A pp. Gas. 445.] The writ of error in this case was argued November 30th, and December 1st and 10th, 1840, before Tindal C.J., Lord Abinger C.B., Parks B., Bosanquet J., Alderson B., Coltman J., Rolfe B., and Maule J. Sir W. W. Follett for the plaintiffs in error. The two questions before the Court are, firstly, whether the rate, which the plaintiffs have proceeded to enforce in the Ecclesiastical Court, is a legal one; secondly, whether, supposing it to be illegal, a Court of Common Law has power to enquire into its validity, and to issue a prohibition 1 As the validity of the rate is the ground-work of the application, it will be proper first to consider this point. It is admitted on the record that the parish church stood in need of repair; that a vestry was duly assembled ; that the estimated amount, required to be raised for the repairs and other necessary service of the church, was correct; that a majority of the vestry carried a resolution to postpone the rate under circumstances which amounted to an absolute refusal to make one at all (b)2, so long as the church was applied to its [266] only legitimate purpose; that, upon such refusal, the churchwardens alone made the rate; and that it was confirmed by the proper authority. It is now na longer domed (though disputed upon another occasion (a)-), that the duty of repairing the parish church is not merely voluntary, but is absolutely obligatory on the parishioners. The judgment in the Queen's Bench distinctly recognises the obligation, and refers to the authorities, The only question is how it is to be enforced. On the part of the defendant in error it is alleged to be an obligation formerly enforced by means which the Reformation has rendered ineffectual, namely, by interdict or excommunication. Is it to be said, then, there is an acknowledged legal obligation which the law affords no means of enforcing1? Such is the effect of the judgment below. Yet, upon principle, wherever the common law imposes a duty, and no other remedy can be (J)1 Sea Blwit v. Harwood, 8 A. & E. 619. (c) See the next caae. (a)1 See the last case. (i)2 The adjournment for twelve months was admitted in argument to be equivalent to a refusal. (a)2 See the debates in the House of Commons, March 3, 14 and 15, 1837, Hansard's Pad. Deb. 3d aer., vol. xxxvi., p. 1207, vol. xxxvii., p. 383, 4G6. 814 VELEY V. BURDER 18 AD. ft E. 867. shewn to exist, or only one which has become obsolete or inoperative, the Court of Queen's Bench will interfere by mandamus (6)1. Whenever the subject of complaint is purely of ecclesiastical cognizance, and an adequate remedy is provided by the ecclesiastical law, then the writ is refused. On thia ground it was that the Court refused to compel the making of the rate in Sex v. Churchwardens of Thetford (5 T. R. 364). The same principle is recognised in Rex v. Churchwardens of St. Margaret (4 M. & S. 250), and Bex v. Wilson (5 Dow. & Ey. 602). The cases of Bex v. Churchwardens of St. James, Clerken-[2fff]-well, and Bex v. Churchwardens of Croydon, mentioned in a note to Bex v. Wix (2 B. & Ad. 199), where a mandamus was granted to parishioners to assemble to make rates, are founded upon special local Acts, and not upon the general law. So an indictment will not lie against the parishioners for non-repair of a church, as in the case of a bridge or highway where there is a common law liability, because the offence is within the jurisdiction of the Spiritual Court, and the ecclesiastical law can supply a sufficient remedy. What, then, is the remedy 1 The proposition which the plaintiffs in error undertake to support upon principle and authority is, that, where the parishioners are duly summoned to meet to make a rate for the necessary expenses of the church, and either refuse to meet, or, when assembled, refuse to concur in making the rate, then the churchwardens have authority to make it without such concurrence. Upon principle, the power is neither unreasonable nor at variance with legal analogies. The churchwardens represent the body of the lay parishioners, who have a voice in the appointment. It may be convenient and proper to consult the parishioners, but very inconvenient to require their express assent to every act done by the officers in the discharge of their duty. Highways are supported by rates made by the sole authority of surveyors. Overseers require no consent to tax their parishes to the relief of the poor. Under the Church Building Acts, the Legislature has in some cases expressly empowered churchwardens to make rates without a vestry (6)3. The power is the more reasonable, [268] inasmuch as the process to compel repairs is against the churchwardens themselves, without reference to the funds which they may have in hand. The Court below has indeed denied that there are any instances in which they have been visited with personal liability, but this is a mistake. In the Shadwell case, 1809 (a), Lord Stowell issued a monition against churchwardens to take measures for the repair of the parish church, although no funds were shewn to be in their hands. In Lard Maynard v. Brand (3 Phillira. 501), the same Judge compelled the reparation of a spire in a suit against the churchwardens alone, although it is clear from the report of the judgment that they had no funds in hand when the monition issued. It is true that the modern form of the rate usually purports that the churchwardens and parishioners made it; but there is no ground to suppose that form to be of ancient date, nor can any strong inference be drawn from it; for the parishioners may have been named in it either because their assent is included in that of their representatives, the churchwardens; or because their assent is always desirable, and is, in fact, often required, when the rate is to be expended on objects not absolutely essential. The distinction, which will probably be found to reconcile all the cases and text writers, is between necessary reparation, and expenditure not merely for repairs but for the enlargement or ornament of the church : a distinction which was not adverted to by the Court below. Degge, in his Parson's Counsellor (part i. ch. 12, p. 137 (4th ed. 1685), has been cited to disprove the power; but his opinion seems rather to [269] prove it. "If," he says, "the parishioners, when they come together at such meeting, refuse or neglect to join in making such assessment, or refuse to meet, I conceive the churchwardens, having just cause for such assessment, may proceed alone;" and he assigns this reason, that, if the churchwardens neglect to make the repairs when duly admonished, the Ordinary or other visitors may proceed against them by ecclesiastical censures; " but some are of opinion that'the churchwardens cannot proceed alone, but must compel the (i)1 See Buller J. in Rex v. Bishop of Chester, 1 T. E. 404; Grose J. in Bex v. Marquis of Stafford, 3 T. E. 652. (4)2 Sea Rex v. Churchwardens of St. Mary, Lambeth, 3 B. & Adol. 651. See also stat. 7 G. 4, c. 72, a. 25, for levying church rates, &c. in Ireland. (a) Cited from Dr. Arnold's MSS., in Dr. Nicholl's Observations on the Attorney General's Letter to Lord Stanley. London, 1837. 1JAD.&E.270. VELEY V. BURDER 815 parishioners to do it, by ecclesiastical censures: ideo quaere." This is, at all events, a proof that the doctrine now contended for is no novelty. It is also supported by the authority ol Watson's Clergyman's Law (chap. 39, p. 722, ed. 1712), and Wood's Institute of the Laws of England (book i., ch. 7, p. 89, ed. 1734), passages in I Gibson's Codex, 196 (Ed. 2, tit. ix. c. 4, s. 2), and Prideaux's Directions to Churchwardens (p. 77 (8th ed., by Tyrwhitt), have been relied on, as shewing the necessity of consent by the major part of the veatry. But these are explained by bearing in mind the distinction between needless and essential expenditure. Prideaux expressly says (p. 41-44), that of things " needful to be done" the churchwardens are sole judges; and, though he considers it "advisable, for the greater content and satisfaction of the parish, that they do not enter on any great and chargeable repairs without first talcing the advice of their neighbours," yet, if they act without such advice, "they have, by virtue of their office, full power and authority to do so." He then proceeds to say that, "if they add any thing new, they must have the consent [270] of the major part of the parish." The same law is to be found in Viner's Ab, Churchwardens (A, 2), pi. 10 and 12, and Bacon's Ab. Churchwardens (C). So Dr. Burn, in his comment on canon 85, says that in common reparations, " where nothing new is added or done, it doth not appear that any assent of the major part of the parishioners is necessary " (a)1. The opinion of Sir William Scott, which was referred to by the Court below, is also strong evidence of the law, and recognizes the principle that even unnecessary alterations of the fabric are to be considered on the same footing as necessary repairs when sanctioned by the vestry, and that the churchwardens are therefore warranted in raising a rate by their sole authority and against the express dissent of the vestry (i)1. [Alderson B. Why call tha parishioners together at all, if a rate can be made notwithstanding their express dissent?] The assent of the vestry protects the officers from being questioned as to the reasonableness of the rate...
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