1840.

The QUEEN

against BAINES.

therefore, pronounce any opinion upon the point made in this respect, further than to guard ourselves against being supposed to pronounce indirectly in favour of the form very needlessly substituted for the express words of the schedule. And we leave it entirely open to the defendant to make such direct application as he may be advised to make against the writ.

To the objection, that the writ was not opened in this Court before delivery to the sheriff, we attach do weight.

Upon the whole, therefore, we are of opinion that the return must now be taken to be sufficient, and the prisoner must be remanded.

Prisoner remanded (a).

(a) The prisoner, in the same vacation, sued out a habeas corpus returnable in the Court of Chancery, and a motion was there made for his discharge on objections to the significavit, and on the ground that the writ did not appear to have been opened according to stat. 5 Eliz. c. 23. s. 2. The points discussed (December 8th, 9th, and 15th, 1840) were nearly the same as those argued in the above case. Lord Cottenham C. overruled all the objections; and the prisoner was remanded.

In re Baines, 1 Craig f. Phillips, 31.

1840.

BURDER against Veley and Another.

rate for the ne

PROHIBITION. The declaration stated that de- Where the

churchwardens fendants, on 10th June 1837, being then the duly convene church wardens of the parish of Braintree in the county and propose a

a parish vestry, of Essex and diocese of London, made a certain pre- cessary repair tended rate and assessment upon certain inhabitants of and expenses of

the parish the said parish, as and for a church rate assessed upon

church, which

a majority of and payable by the inhabitants of the said parish, which the assembled

parishioners pretended rate was in the words and figures set forth then refuse to

make; a rate, in the paper writing thereinafter mentioned and referred made by the

churchwardens to; and that afterwards, to wit on the 26th August alone at a subin the year aforesaid, defendants caused a citation to sequent day and

meeting, not be issued against plaintiff, purporting therein that the being a parish

meeting, is il. Lord Bishop of London thereby authorized and com- legal and void.

And, where the manded all and singular clerks, &c., peremptorily to church wardens cite plaintiff to appear personally, or by his proctor, be- rishioner in the

spiritual court fore Stephen Lushington, Vicar General and official prin- for non-pay

ment of such cipal of the Episcopal and Consistorial court of London, rate, and the his surrogate, or some other competent judge in that above facts ap

peared on the behalf, to answer the defendants, therein described as face of the rate

and in the prothe churchwardens of the said parish, in a certain cause ceedings in that

court, and the of subtraction of church rate: that, in pursuance of judge admitted and in obedience to the said process, plaintiff duly ap- proof, this

libelled a pa

a

1840.

BURDER against VELEY.

peared in the said court; whereupon the proctor for defendants, as such church wardens as aforesaid, prayed the said Stephen Lushington to admit to proof a certain libel, containing, amongst other things, certain allegations and propositions by way of complaint against plaintiff; that is to say:

That, the parish church of the said parish being in need of several necessary repairs, the same not having been substantially or sufficiently repaired for several years then last past, the churchwardens, overseers of the poor, and divers other of the most substantial parishioners and inhabitants of the said parish, on 2d June 1837, met together in vestry in the vestry room of the said parish, pursuant to public notice previously and duly given, for the purpose of making and granting a rate for the repairs of the church of the said parish, and for defraying the expenses incident to the office of the churchwardens thereof for the remainder of their year of office; and that, at such meeting, the Reverend Bernard Scale, clerk, the vicar of the said parish, was present and took the chair; that the now defendants did produce and exhibit to the said meeting a survey and estimate, which had then been recently made by a person of competent skill and experience, of the repairs necessary to be immediately done to the said parish church, and of the expenses thereof; and that such expenses were computed to amount to the sum of 5081. 12s.; and that they did also produce and exhibit to the said meeting an estimate of the necessary and lawful expenses incident to the execution of their said office for the remainder of their year of office, amounting to the sum of 231. 18s.; that

1840.

BURDER aguinst VELEY.

they stated to the said meeting that the said sums, amounting together to the sum of 5321. 10s., were absolutely and indispensably requisite for the necessary repairs and service of the said parish church; that the necessity for such repairs was not disputed or denied by any of the persons present at the said meeting; and that no objection was made by any of such persons to the amount of such estimates.

That it was then proposed and seconded, that a rate of 3s. in the pound should be granted and made in order to raise the said sum of 5321. 10s., but that, before the same was put to the vote, an amendment was moved and seconded, stating, amongst other things, that little more than six months had elapsed since the parishioners of the said parish in vestry assembled had resolved, by a very large majority, that the consideration of a church rate should be adjourned for twelve months; and that, in assembling the parish again to agitate the question of a church rate, and in doing so before the expiration of the time to which the consideration of that question had been postponed by the said resolution of the vestry (meaning thereby a vestry meeting which had been held in the month of December preceding), the said churchwardens had shewn themselves to be greatly wanting in that respect to the parishioners, as a body, which was due to them from every parochial officer; and that the meeting could not but deeply regret that the clergyman of the said parish should have given his sanction to a proceeding at once so frivolous and vexatious, as that which then called that numerous assembly of rate payers from their several occupations; that, thus convey

1840.

BURDER against VELEY.

ing to the vicar of the said parish, and to the churchwardens, the expression of their grave disapprobation for the then uncalled for and improper agitation of the parish, the meeting would give to the demand of the churchwardens no other answer than that which they had already within six months received, and which would be found on the minutes of the vestry, signed by the vicar as chairman, in the following words:-“ Resolved, that it appears to this meeting, that the existing law which authorizes church wardens to convene a parish meeting for the purpose of levying a church rate does also recognize what is called the voluntary principle to this extent, that by it no church rate can be laid but by the free consent of a majority of the parishioners duly assembled in vestry to determine upon it; that the parishioners of Braintree are fully prepared to vindicate this redeeming feature of the law as it now stands, by freely exercising the just rights that the law secures to them, and determining for themselves whether a church rate shall now be laid or not; that, having accordingly well considered the proposition to levy a church rate on the present occasion, and the principles involved in that proposition, it is their matured conviction that, so long as the parochial churches are exclusively devoted to the use of the established sect, all expenses of repairs should be defrayed out of the ample revenues of that richly endowed sect, or, if there be no ecclesiastical funds available for such purposes, that all expenses of repairs should be defrayed by the voluntary contributions of those who exclusively enjoy the use of the buildings; and, finally, that the consideration of a church rate be postponed to this day twelve months.” That a shew of hands

a

a

was