to

|

[ARCHES.

improper in the addition of that ledge." Much has been said in this case upon the point as to whether or not the ledge was attached to the Holy Table so as to be immovable; it certainly was not fastened to the Holy Table itself, but there is a doubt upon the evidence whether it was not so attached to the cloth as to necessitate the removal of the cloth when the ledge was removed. I am not prepared to say that even in this case it would not fall within the principle of permission in Liddell v. Beal. But assuming this not to be so, observe the error of the churchwarden's conduct; he evidently thought that the addition of the ledge was per se illegal; he did not unfasten it from the cloth, and replace it as the law (if he had, as he had not, any power at all in the matter) would have required him to have done; but he caused it to be detached from the cloth, removed altogether, and put away in a coal hole. I may remark here that my surprise that any churchwarden should have dealt so irreverently with what had been for some years connected with the Holy Table was diminished by the subsequent evidence in the case. From that it appeared that when Mr. Cordingley was first chosen churchwarden, he honestly and expressly stated that he was not a member of any church, which he explained in this court to mean that he had never been a communicant. It was certainly a strange and ill-advised choice by the parishioners in the first instance, and I think it reflects credit upon Mr. Cordingley that he was aware of the impropriety of his occupying this position, and with reluctance accepted it contrary to his own wishes. He said in this court, "I have never communicated, and I have always had a great reluctance to be churchwarden." It cannot be too plainly stated that, without reference to extreme and exceptional cases, which afford no test of the law, ornaments, which have once been de facto, though illegally or irregularly placed in the church, must be legally, that is under the sanction of the ordinary, removed. This is a position no less sound in law than essential for the peace of parishes. Lord Stowell applied this principle to the matter of removing monuments in churches. "It is alleged," he says, "that the rector had given his consent that the monument should be taken down, which, however, is denied. But the taking down the monument would be an offence for which also the party would be liable to prosecution, since, when once erected, it cannot be removed without the sanction of the ordinary. The consent of the rector, therefore, would not be sufficient:" Maidman v. Malpas, 1 Hagg. Cons. Rep., 211.) Lastly, it has been urged in mitigation of the conduct of the churchwarden, that he had a right not merely of access to the church at proper seasons, but to the custody of the keys of the church; and the case of Jarratt v. Steele was relied upon for this position: (3 Phill. 167.) In that case Sir John Nicholl observed: "All persons ought to understand that the sacred edifice of the church is under the protection of the ecclesiastical laws as they are adminis tered in these courts; that the possession of the church is in the minister and the churchwardens; and that no person has a right to enter it when it is not open for Divine service, except with their per mission and under their authority. Lord Chief Justice Erle's judgment, too, in Griffin v. Dighton, 5 Best & Smith, 114 (1864) was much relied upon; in which he recites this passage as the foundation of his own judgment, adding, "That is a perfectly sound exposition of the law in the temporal as well as in the ecclesiastical courts. The domus mansionalis

observed that churchwardens are appointed to provide the furniture of the church, the bread and wine for the holy sacrament, the surplice, and the books necessary for the performance of divine worship, and such as are directed by law; but it is the minister who has the use. If, indeed, he errs in this respect, it is just matter of complaint, which the churchwardens are obliged to attend to; but the law would not oblige them to complain, if they had a power in themselves to redress the abuse. In the service, the churchwardens have nothing to do but to collect the alms at the offertory; and they may refuse the admission of strange preachers into the pulpit. For this purpose they are authorised by the canon, but how? When letters of orders are produced, their authority ceases. Again, if the minister introduces any irregularity into the service, they have no authority to interfere, but they may complain to the ordinary of his conduct. I do not say there may not be cases where they may be bound to interpose; in such cases they may repress and ought to repress all indecent interruptions of the service by others, and are the most proper persons to repress them, and they desert their duty if they do not. And if a case could be imagined, in which even a preacher himself was guilty of any act grossly offensive, either from natural infirmity or from disorderly habits, I will not say that the churchwardens, and even private persons, might not nterpose to preserve the decorum of public worship. But that is a case of instant and overbearing necessity that supersedes all ordinary rules. In cases which fall short of such a singular pressure, and can await the remedy of a proper legal complaint, that is the only proper mode be pursued by a churchwarden: " (Hutchins v. Denziloe and Loveland, Cons. Rep. vol. 1, p. 175.) I have carefully considered the chapter in Ayliffe referred to by Lord Stowell; and I find it entirely in accordance with his view. I was also referred by Mr. Stephens to a judgment delivered by myself in the Consistory of Oxford (reported at length by D.. Swabey in the LAW TIMES, 1857, vol. 29, p. 402), as containing a correct exposition of the law upon this subject. I am not aware that it in any way conflicts with the principles of the judgment which I am about to deliver. Indeed the whole doctrine of presentments by the churchwardens is grounded upon the fact that their office is one of "observation and complaint;" and, except in extraordinary emergencies, not one of immediate action or exercise of individual power, There would be no necessity for presentment to the ordinary at all if they might take the law into their own hands, and remove, without reference to him, whatever they conceived to be illegal in the ornaments of the church. In the Knightsbridge cases the proper course was adopted; the power of the ordinary was invoked to remove illegal ornaments; and the result proved the wisdom of this mode of proceeding, for the churchwarden would in that case have removed many ornaments which the Judicial Committee eventually pronounced to be legal. In the present case the churchwarden removed altogether the ledge which was upon the Holy Table. Now the decision of the Judicial Committee of the Privy Council, in Liddell v. Beal, 14 Moo. P. C. Rep., established that the addition of a wooden ledge to the Holy Table, called in that as in this case a super-altar, which is not fastened to the table so as to be immovable, is a legal ornament. Their lordships say that when the Lord's Supper is administered the ledge might be removed and replaced upon the table, then covered with a fair linen cloth "for the purpose of hold-omnipotentis Dei is not to be turned from the puring candlesticks and vessels ;" and it is said in that judgment, "It is not shown, and their lordships think it ought not to be inferred, that there is anything superstitious (if the term may be used) or anything

pose which that name expresses; and the minister and churchwardens are entitled to possession of the church, and to have free access to it at all times." It has been endeavoured to extract from this lan

ARCHES.]

RICHINS v. CORDINGLEY.

[ARCHES.

guage of Sir John Nicholl, in Jarratt v. Steele, the over to or by them, or even shown to them, and position that the freehold of the church is in the they have examined three witnesses to contradict churchwardens as well as in the incumbent, or at Mr. Kendell on this point. Now let us assume for least that the custody of the church is equally a moment that Mr. Kendell's memory is altogether vested in both parties, and therefore that the at fault, let us leave out of the question Mr. Kenchurchwardens must be entitled to the keys of the dell's evidence and the bishop's letter, is it or is it church equally with the incumbent. But this is a not true that Messrs. Good and Ford had notice of position which even the letter of the judgment does the rector's dissent from their procedings until they not warrant, and which is directly at variance with had obtained the consent of the bishop? The the common law and a series of decisions upon the rector swears that he wrote a notice to the folsubject, and most especially with the decision of lowing effect: As rector of this parish, I hereby the same learned judge in the later and very care- give you notice that I object to any alterations fully considered case of Lee v. Mathews. Observe his being made in the church without the consent of language in this case. "On the other hand," he the bishop;' and there is the further evidence of says: "the minister kept possession of the keys of White, the carpenter, who was employed by the dethe church; and, as it should seem, in order to pre- fendants to make the alterations, that he received vent this painting at that particular time; and the notice in their presence, and showed it to them, surely the minister of the parish is the fittest per- and that Good told him not to mind it, for that he son to decide at what season the public worship (Good) and Ford would take care of him. Having may be suspended with least inconvenience to the read the notice, they immediately proceeded to religious duties of the parishioners. This vestry break open the church door with a crowbar. Such was called for the purpose of ordering an additional was the effect of the notice. The rector forbade key of the church to be made for the use of the the proceedings, refused to be a party to them, parish churchwarden. This was very irregular; for and gave them full information that they could the minister has, in the first instance, the right to not act as they proposed legally without the the possession of the key, and the churchwardens bishop's consent. They nevertheless disregarded have only the custody of the church under him. his protest, and acted as I have stated. Nay, more: If the minister refuses access to the church on fitting On the same afternoon, after Mr. Dewdney, occasions, he will be set right on application and the rector, and Mr. Randall, one of the churchcomplaint to higher authorities:" (Lee v. Mathews, wardens, had interfered, and, having cleared the 3 Hagg. 173.) The same doctrine is referred to by church of the workmen, had secured the church Dr. Lushington in the recent case of Dewdney v. Good, door with a padlock, Messrs. Good and Ford a as one of the best established axioms of ecclesiastical second time broke into the church. To say that law. In the case of Dewdney v. Good, decided in the all this was done without due consideration is imCourt of Arches in the year 1861, reported with possible. The church is the rector's freehold, his usual accuracy by Dr. Middleton in 7 Jur. and, in despite of his warning, given in the plainest 637, the churchwardens of the parish of Gussaye, and most perspicuous terms, the defendants comin Dorsetshire, accompanied by another parishioner, mitted this most serious offence. But it is further and acting upon a resolution of the vestry, but alleged, in defence, that some three years ago the against the expressed prohibition of the rector, and rector made certain alterations in the church, which without any authority from the bishop, broke open were disapproved of by the parish. The answer to with a crowbar the principal door of the church, that is, that if the rector had exceeded the authority and with the assistance of some workmen proceeded conferred on him by the monition, in obedience to to alter the position of the pulpit, and to pull down which he pretended to act, application should have and re-arrange certain of the seats within the been made to the archdeacon. No one else was church; the learned judge, Dr. Lushington, most authorised to decide whether Mr. Dewdney had strongly held that all who had taken part in these done right or wrong. If the rector had violated proceedings had been guilty of a grave ecclesiastical | the terms of the monition, the parish alone were offence. In this very important judgment he says: not, nor were Messrs. Good and Ford, under any "The first question, what is the law on this sub-resolution of a vestry of the parish, justified in ject, is beyond all doubt or dispute. No man, who-setting right what he had done. The churchwardens ever he may be, has any right to make any changes in the church, except the ordinary, and those legally deputed by him. No lawyer can possibly have any doubt upon this point. As to the facts, it is almost unnecessary to inquire into them minutely, because it is admitted that, in pursuance of a resolution of a vestry of the parish, Mr. Good and Mr. Ford did proceed to act in the manner complained of; that Mr. Good, in the discharge of the supposed duties of his office of churchwarden, sent for the key of the church to the rector; that the rector refused to let him have it; and that Mr. Good thereupon forced open the church door with a crowbar, and proceeded to make certain alterations, in accordance with the resolution of the vestry. All this is not only admitted, but abundantly proved. Now, considering what is thus admitted and proved, I am of opinion that the defendants have been guilty of a grave ecclesiastical offence; that the court is called upon to declare that their proeedings have been illegal, to order them to remove the alterations that they never should have made, and, unless they can allege some valid defence, to condemn them in the costs of this suit. What are the circumstances they have brought forward in defence of their conduct? In the first place they say that the letter of the bishop was never read

could only compel him by legal means to make any alteration. In this case both the archdeacon and the bishop had visited the church subsequent to the improvements being completed, and had approved of them. On the whole, it seems to to me that the acts of these defendants were of the wors possible character, and likely to lead to the greatest mischief. It would afford the worst possible example if I gave any encouragement to the idea that a mere resolution of a vestry could arm the churchwardens or any one else with authority to do such acts. The law must exert its powers to punish those who have offended in this way. I shall condemn the defendants in the whole costs, more especially as they might have admitted their error, and given in at the earliest stage an affirmative issue; and I shall order the church to be restored, unless within a limited time a representation be made to the bishop, and he orders this court to stay its hands. The key of the church is the property of the rector, as was long ago decided by Lord Stowell, and must be delivered up by the churchwarden." (I do not know whether the learned judge is here referring to some unreported case; we all know that reports in the ecclesiastical courts are of very recent date.) In this case the promoter of the office has withdrawn that portion of his prayer, which re

IRELAND.]

Re PIGOTT.

[IRELAND.

quested the court to order the restitution of the articles | was the question, Whether he had the power to do which had been illegally removed; and the court is that which he was asked to do? It was very now only prayed to admonish Mr. Cordingley to singular, that in the whole course of the law no case abstain from such illegal conduct for the future, could be produced in which a Chancellor was called and to condemn him in the costs which that conduct on to exercise this jurisdiction except the one of has occasioned. I must not forget that there is evi- Rowne in Molloy's Reports. No one pretended that dence before me that the offender was not ignorant the Chancellor was ever asked, ex mero motu, to issue of the law applicable to this case; and perhaps I a writ of error in a criminal case. No one ever had am hardly justified in not following in every respect had recourse to this court before going to the the precedent set me by Dr. Lushington in the Attorney-General or the Lord Lieutenant. A recent case of Dewdney v. Good, and in condemning memorial was always presented to the Lord LieuMr. Cordingley in all the expenses of this suit. tenant, who took counsel with the officer who, for a But having regard to the fact, that when this cause vast number of purposes, filled a judicial position. first came before me, I suggested that the parties It was not right to suppose that the Attorneyshould agree upon a statement of the facts and take General was a prosecutor only. He exercised quasi the opinion of the court upon the question of law; judicial functions also, and in no case did he do so that this proposition, which would have most mate- more than in reference to his duties as prosecutor, rially diminished the expenses of the suit, was and he (the Lord Chancellor) knew that for a long accepted by Mr. Cordingley and not entertained by period those functions had been carefully and conthe promoter; and also having especial regard to scientiously exercised in such a way as to form a the fact that these ornaments were put up without guard to innocent individuals. In a constitution the previous or subsequent sanction of the ordinary, like ours, with a House of Commons all powerful, that is without an original faculty or by a faculty and a House of Lords to superintend the administo confirm, I shall not condemn Mr. Cordingley in tration of justice, it was impossible that such an in the whole expenses of the suit. I admonish him officer should exercise his functions capriciously or to abstain from such illegal practices for the future, maliciously without being made amenable to public and I condemn him in the sum of 100l., nomine justice; but then, on the other hand, it was necesexpensarum. sary that such an officer should be left at liberty to perform those functions freely, which he would not be if a motion of this nature could be made, and if an appeal lay from his decision upon a matter on which, on all the authorities, he was to exercise his discretion, and on which in no case had the Chancellor been called upon to do so. There was no pretence for saying that there was any authority save the one in Molloy. As to that, he hesitated to believe that the Lord Chancellor had used the

Proctor for the plaintiff, Brooks.

Proctors for the defendant, Moon and Currie.

COURT OF CHANCERY (IRELAND).

Thursday, June 11, 1868.

Re PIGOTT. (a)

Writ of error-Misdemeanour―Jurisdiction of Lord language attributed to him by the reporter. The

Chancellor.

Lord Chancellor of that day was a great master of the practice of the court; in a less degree he was a The granting of a writ of error is part of the preroga-master of equity itself; but he had not been three tive of the Crown. If, therefore, the Attorney-General times in his life in a criminal court; while there of England, or the Lord Lieutenant of Ireland refuse never, perhaps, was an Attorney-General of such to grant it, the Lord Chancellor has no jurisdiction to review that decision. vast experience as the Attorney-General of that day, Mr. Saurin. The argument of Mr. Butt had been that there had been a change in the law at the period of the Revolution, that prior to that there was no distinction in this respect between treason and felony on the one hand, and misdemeanor on the other, and that in all alike the granting of a writ of error depended on the sanction of the Crown, but that since the Revolution, in case of misdemeanor, the subject could claim the writ as matter of right ex debito justitiæ; and then Mr. Butt rightly, if his premises were true, went on to argue that if there is an absolute right there must also be a remedy. Well, he (the Lord Chancellor) did not know by what process it was that the law was stated to have been changed at the Revolution. No doubt the times preceding that event had been what are called bad times, and one of the first things which care was taken to do after it was to remedy the injustice which in many cases had been done to individuals; but still the precedents which followed were for a

This was a petition by Richard Pigott, a prisoner under sentence for publishing a seditious libel, that the Lord Chancellor should order the proper officer to issue a writ of error under the Great Seal of Ireland. Mr. Pigott had been convicted of publishing a seditious libel. The sentence was that he should be imprisoned for twelve calendar months, and at or before the expiration of that period should find sureties to be of the peace, and in default of his so doing should be imprisoned for six months more. The prisoner had presented a memorial to the Lord Lieutenant praying that a writ of error might issue. The prayer of this memorial was refused, and the prisoner then presented this petition.

Butt, Q. C., Heron, Q. C., and Molloy were for the prisoner, and argued that the Lord Chancellor had jurisdiction to grant the application, and that there was reasonable cause for the writ.

The Solicitor-General, Ball, Q. C. and T. P. Law, long period those of unsettled times, when a great for the Crown.

Amongst other cases

Ex parte Newton, 16 C. B.;

Reg. v. Prosser, 11 Beav.;
Armstrong's case, 10 St. Tr.; and
Ex parte Lees, E. B. & E.,

were referred to.

The LORD CHANCELLOR said that he did not entertain the least doubt upon the only matter on which he intended to express any opinion. That

(a) Adapted from the Irish Law Times.

deal was often done according to the particular party which happened for the moment to be in power. He was unwilling, in settled times, to follow them. All the modern cases were against the idea that the courts could interfere with the discretion of the Attorney-General; and those cases were decided by such men as Lord Romilly, Jervis, C. J., and Lord Campbell-men by no means likely to stretch the prerogative against the rights of the subject. They all laid down the law exactly as it was laid down in Blackstone. That plainly made the granting of the writ a part of the prerogative of

IRELAND.] GUARDIANS OF LONDONDERRY Union v. LONDONDERRY BRIDGE COMMISSIONERS. [H. OF L. the Sovereign, which in Ireland was entrusted to the | in the court below (Exchequer), caused a reservoir Lord Lieutenant. He (the Lord Chancellor) had no for water to be constructed on their own land. jurisdiction to do what was sought of him. In They employed for the purpose a competent engiputting the seal to writs of error he did not act neer and contractor. The district was a mining judicially. He never inquired into the merits; district, and it happened that, at the site selected, what he did was only ministerial. On the whole, there were some old vertical shafts which, as it he could only act in the way laid down by the turned out, led down to some old abandoned coal highest authorities, and must say "No rule." workings. These vertical shafts, half filled with earth, were discovered by the workmen while making the reservoir, but they filled them up and

COURT OF

EXCHEQUER CHAMBER stopped them with such skill and caution as was (IRELAND).

May 25, and June 13, 1868

THE GUARDIANS OF THE LONDONDERRY UNION v.
THE LONDONDERRY BRIDGE COMMISSIONERS. («)

Poor-rate-Public purposes.

This was an appeal from the Court of Queen's Bench. The question was, whether the commissioners were liable to pay poor-rate in respect of their toll house and the tolls they levied on the bridge. The commissioners resisted the claim on the ground that the bridge was used for a public purpose, and so within the exemptions in the Poor Law Act.

The court below held the commissioners liable. Carson and M'Causland, for the plaintiffs. Macdonagh, Q. C., Hamilton, Q. C., and Colhoun, for the defendants.

Cur adv. vult.

June 13.-MORRIS, J. was for affirming the judgment of the court below, holding that though the current of English decision would have gone at one time to exempt the defendants, that had been modified by the decisions in Jones v. Mersey Docks, 11 H. of L. Cas. 443; and that public purpose meant used by the State, like a police barrack, &c.

O'HAGAN, J. held that the recent English decisions did not apply to the Irish Act, which was framed to suit the peculiar circumstances of this country, and was for reversing the decision of the court below.

DEASY, B., and KEOGH, J, concurred with MORRIS, J.

FITZGERALD, B., PIGOT, C. B., and MONAHAN, C. J., with O'HAGAN, J.

Judgment of Queen's Bench reversed. Attorneys for plaintiffs, Hayden and Rogan. Attorney for defendants, J. Burgess.

HOUSE OF LORDS.
Reported by HENRY F. PURCELL, Esq., Barrister-at-Law.
July 6, 7, and 17, 1868.

IN ERROR FROM THE COURT OF EXCHEQUER CHAM-
BER, AND FROM THE COURT OF EXCHEQUER.

RYLANDS v. FLETCHER AND ANOTHER. Trespass-Artificial reservoir-Underground escape of water-Consequential damage.

If a person brings or accumulates on his land anything which if it should escape may cause damage to his neighbour, he does so at his peril. If it does escape and cause damage, he is responsible, however careful he may have been, and whatever precautions he may have taken to prevent the damage.

Messrs. Ryland, the plaintiffs in error, defendants

(a) From the Irish Law Times. MAG. CAS-VOL. V.

deemed necessary. Subsequently, the reservoir being filled, the water forced its way down these shafts, and, escaping into the old workings, flowed through them and flooded a coal-mine of the defendant in error, the plaintiff in the court below.

The Court of Exchequer gave judgment for the defendants in the original action, on the ground that they were not liable for damage resulting from the lawful user of their own land in the absence of negligence and malice.

In this case there was certainly no malice, and, as they had no knowledge of the circumstances requiring extraordinary care, they could not be fixed with negligence.

The Court of Exchequer Chamber, on error brought, unanimously reversed that judgment. Error was brought to this House.

Sir Roundell Palmer and Jones, Q. C. for the plaintiffs in error. Damage resulting from the underground flow or percolation of water through unknown channels does not stand on the same footing, from the diversion of water flowing in known with regard to compensation, as damage resulting channels. They cited

Acton v. Blundell, 12 M. & W. 324;

Chasemore v. Richards, 7 H. L. Cas. 349;
Smith v. Kenrick, 7 C. B. 515;

Dickinson v. The Grand Junction Canal Company,
7 Exch. 282.

Every landowner may use his own land in the
manner most beneficial to himself. If damage
results to his neighbour from such user, he
is not answerable if he has used all ordinary
care according to the best of his skill and know-
ledge; the damage consequent upon his acts is
called damnum absque injuriâ, and is not the subject
of compensation. He must guard against probable
consequences knowledge of which can be imputed to
him, as that cattle have a propensity to stray; but if
he exercises the best skill he can command, and
takes all ordinary precautions, he is not to be
charged, though some damage, unforeseen and per-
haps unavoidable, may result. A man is not bound
to use extraordinary caution in dealing in a lawful
manner with his own property:

Chadwick v. Trower, 6 Bing. N. C. 1;
Portridge v. Scott, 3 M. & W. 220.

A person who employs the best professional talent
at his command to do a lawful act is not to be held
responsible for the negligence of the professional
man so employed by him, unless they stand towards
one another in the relation of master and servant:
Butler v. Hunter, 31 L. J. Rep. N. S. 11, Ex.;
Ellis v. The Sheffield Gas Consumers' Company,
2 Ell. & Bl. 767;

Peachey v. Rowland, 22 L. J., N. S., 81, C. P.;
Steele v. The South-Western Railway Company, 16
C. B. 550.

the defendant in error, the plaintiff in the court
Manisty, Q. C. and Russell, Q. C., appeared for
below, and contended that if a person alters things
from their normal state, so as to render them
dangerous to rights already acquired, he is bound to
face that danger; if damage results from the alter-
ation, he is answerable therefor. They cited
Groucott v. Williams, 4 B. & S. 149;
Backhouse v. Bonami, 9 H. L. Cas. 903;

Р

RYLANDS v. FLETCHER AND ANOTHER.

Broadbent v. The Imperial Gas Company, 7 H. L. Cas. barrier between his close and the close of the defen