White v Steele and Another
| Jurisdiction | England & Wales |
| Judgment Date | 11 June 1862 |
| Date | 11 June 1862 |
| Court | Court of Common Pleas |
English Reports Citation: 142 E.R. 1191
IN THE COURT OF COMMON PLEAS AND IN THE EXCHEQUER CHAMBER
S. C. 31 L. J. C. P. 265; 6 L. T. 686; 8 Jur. N. S. 1177. Referred to, Mayor of London v. Cox, 1867, L. R. 2 H. L. 276. Distinguished, Rippin v. Bastin, 1869, L. R. 2 A. & E. 388.
[383] cases aiiuued and determined in the couut of common pleas, ln trinity term, in the twenty-fifth year of thk ueion of victoria. The Judges who usually sat in Banco in this term, were,-Erie, C. J., Williams, J., Willes, J., and Byles, J. ,^ , , white v. steble and another. June ilth, 1862. [8. C. 31 L. J. C. P. 265; C L. T. 686; 8 Jur. N. S. 1177. Kef erred to, Mayor of London v. Cox, 18G7, L. R 2 H. L. 276. Distinguished, Mipjiin v. Boutin, IHtiO, L. R, 2 A. & E. 388.] The only legitimate way in which a parish win express its desire, to do an act is, by convening a vestry, and duly conducting the proceedings therein to their legal termination,-viz. by shew of Viands, or by a poll when a poll is duly demanded.-A meeting of vestry wan held for the purpose of considering the propriety of purchasing an additional burial-ground for the parish of I'. A resolution to that effect having been put and agreed to by the majority of those present, a poll was demanded, and refused. The resolution of the vestry was communicated to the church building commissioners, who thereupon authorized the parish to purchase the land and to levy rates to defray the expenses, under the 59 G-. :i, c. 184, s. 25, and 3 (t. 4, c. 72, s. 26. Money was accordingly borrowed by the churchwardens, and a rate made. A parishioner declining to pay the rate, on the ground of invalidity, the churchwardens instituted against him a suit in the Consistory Court, in which suit the respondent tendered a responsive allegation, stating that at the veatry a poll had bedn duly demanded, and refused. The judge of the Consistory court having declined to admit this responsive allegation, the respondent appealed to the court of Arches, by which court the decision of the court below was confirmed.-Upon an application to this court for a writ of prohibition, on the ground that the judge of the Consistory court had improperly refused to receive the responsive allegation, -the applicant was directed to declare in prohibition; and, he having so done,- Held, that there had been no legal expression of the desire of the parish, and consequently that the responsive allegation ought to have been admitted to proof in the Ecclesiastical court.-An appeal from the Consistory court to the court of Arches is no bar to an application for a prohibition. A. Wills, on behalf of George White, in Trinity Term, 18G1, obtained a rule calling upon Alexander Steele and William Lenton, the churchwardens of the [384] parish of Plumstead, in the county of Kent, to shew cause why a writ of prohibition should not issue to the judge of the Arches court of Canterbury, to prohibit him from further entertaining, and the said churchwardens from further prosecuting the suit for subtraction of church-rate then pending before the said court, in which the said churchwardens were the original promoters and the said G/eorge White was the original defendant, on the ground that the said judge, in refusing to admit the responsive allegation of 1192 white v. steele 12 c. b. (N. a.) ass. the defendant, put a wrong construction on the statute law, and especially on the statute 3 G. 4, c. 72, s. 26,-notice being given to the judge of the said Arches court of Canterbury. The circumstances disclosed by the affidavits were in substance as follows:-At a vestry meeting of the parish of Plumstead, held on the 9th of January, 1860, a resolution was passed that the churchwardens should purchase on behalf of the parish a piece of ground as an addition to the existing churchyard. A certain number of the vestry, who were desirous, instead of proceeding under the Church Building Acts, to proceed under the Burial Acts, whereby a cemetery might be obtained, partly consecrated and partly unconsecrated, far the general use of all the inhabitants, dissenters as well as members of the established church, demanded a poll, which the vicar (who presided) refused. The resolution of the vestry was communicated to the church building commissioners, who thereupon authorized the parish to purchase the land and to levy rates to defray the expense. A sum of 10001. was thereupon borrowed, and the land purchased, and the rate now in question was afterwards made for the re-payment of such loan. The now plaintiff refusing to pay the rate, on the ground of invalidity, the churchwardens instituted against him a suit in tlie Consistory court oi London for subtraction of church-rate. The plaintiff claimed [385] to put in a responsive allegation in that suit, to the effect that, a poll having been duly demanded and been refused, the parish had never legally expressed its desire to procure a burial ground, under the statute 3 G. 4, c. 72, s. 2G (a); and, consequently, that the order of the church building commissioners, and all proceedings based upon it, including the rate in question, were illegal. The judge of the Consistory court (Dr. Twiss), rejected the responsive allegation. The now plaintiff', [386] the defendant in the Consistory court, thereupon appealed to the court of Arches, which court confirmed the decision of the Consistory court: see the judgment, 7 Jurist, N. S. 805. The learned counsel referred to the statutes 59 G. 3, c. 134, s. 25, and 3 G. 4, c. 72, s. 26, and to the cases of Gould v. Gajtper, 3 East, 472, 5 East, 345, 1 J. P. Smith, 528, Murder v. Feley, 12 Ad. & E. 233, 4 P. & I). 452, Vdey v. Burder, 12 Ad. & E. 265, 4 P. & D. 475, and The Queen v. Williw,, 16 Q. B. 1. Dr. Phillimore, Q. C., and F. M. White, in Michaelmas Term last, shewed cause. They referred to and commented upon the following statutory provisions and authorities,-58 G. 3, c. 45, ss. 59, 60, 61, 59 G 3, c. 134, s. 25, 3 G. 4, c. 72, s. 26, and The Kittgv. The Churchwardens of St. Alary, Lambdh, 3 B. & Ad. 651, and submitted that the order of the church building commissioners was conclusive as to the fact of the desire of the parish having been duly expressed, and consequently that the learned jndge of the Consistory court was right in rejecting the responsive allegation; that the issuing of a prohibition would preclude the plaintiff's in the ecclesiastical court from (a) Whieh enacts " that it shall be lawful for the said commissioners (the ecclesiastical commissioners) to authorize and impower any parish, chapelry, township, or extra-parochial place which shall be desirous of procuring a burial ground, or adding to any existing church or chapel yard or cemetery, to procure and purchase any such land or ground as may in the opinion of the commissioners bu sufficient and properly situated fork church or chapel yard or burial-ground, or as an addition to any existing church or cjhapel yard or cemetery, and to make, raise, levy, and collect rates for purchase thereof, or for the re-payment with interest of any money borrowed foil the making such purchase, at such times and in such proportions as shall be agreed upon with the person or persons advancing any such money, and approved of by the said commissioners; and the churchwardens or ehapelwarclens or persons authorized under the said recited acts to make rates for any of the purposes of the said recited acts [58 G. 3, c. 45, and 59 G. 3, c. 134J to make rates for any of the purposes of the said recited acts, of any such parish, chapelry, township, or extra-parochial place, may and ahall in every such case use and exercise all the powers and authorities in the said recited aets, for the purpose of making and completing such purchases, and also the powers and, authorities in the said recited acts specified, as to making, raising, and levying any! rates for any of the purposes of the said recited acts; and when any such kind or ground so purchased shall be situate out of the bounds of the parish or place for which the same is intended, the same shall after consecration become and be deemed jart of sucji parish or place; anything, in any act, law, or custom to the contrary notwithstanding." 12 C. B. (N. 8.) 387. WHITK V. STEELK 1193 shewing that the facts alleged in the responsive allegation were untrue; that the proper course would have been to apply to the court of (Queen's Bench for a, mandamus to compel the judge of the Consistory court to admit the responsive allegation to proof; and that, at all events, prohibition would not lie after the appeal to the court of Arches. Wills, in support of his rule, insisted that the only legitimate way in which the desire of the parish could be expressed was, by convening a vestry and duly conducting the proceedings therein to their legal ter-[387]-mination, viz. by the result of a poll, when duly demanded ; and, consequently, that the decision of the judge of the Consistory court rejecting the responsive allegation of the then defendant, and that of the court of Arches affirming the decision of the court below, were erroneous. He referred to Bacon's Abridgment, Prohibition (B.), The King v. T/ie (J/uircliioanlems of tit. Mary, Lambeth, a B. & Ad. 651, T/ut King v. Uurnley, 5 Ad. & H. 10, 6 M. & M. 333, Blwd v. Harwood, 8 Ad. & E. 610, 3 N. & P. 577, fiwitur v. l-'eley, (-2 Ad. & E. 233, 4 P. & D. 452, Veley v. Uurder, 12 Ad. & E. 265, 4 P. & D. 475, llicluinis v. tiyhe, 3 Q. B. 256, 2 Gale & 'L . 493, The Queen v. Willim, 16 0,1. B. 1, Blunt v. Harwood, 1 Curteis, Eccl. B. 648, Hy/ton v. Xemerton, 6 Notes of Cases in the Eccl. Court, 74, Sturmy's Laws of the Clergy, and Pollock's County Court Practice, 300. EELE, C. J. We have paid the best attention we are able to the arguments which have been urged before us : but, considering the extreme importance of the interests at stake, and considering the difficulty of construing these acts of parliament, we...
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