guardians of the poor of the sum of 2651., borrowed 1843. from them in the year 1832, and of a further sum August 8th. of between 2000l. and 3000l., being the amount of debts incurred by the parish in former years. Their Lordships are of opinion, that this allegation is not only not admissible, as presenting any answer to Mr. Farlar's defence, but that the facts alleged in it afford a complete answer to the whole suit, by establishing the illegality of the rate. It is true the rate is good upon the face of it, and it is also true that such a rate would not be vitiated, although one of its objects might have been to reimburse the churchwardens for expenses incurred by them during the current year. This was admitted in the case of a poor-rate in Tawney's case (a) and a similar rule has been applied to the case of church-rates. Rex v. Chapel-wardens of Haworth (b), Rex v. Sillifant (c), and Lanchester v. Fricker (d). But the main object of this rate is to repay money borrowed, and to pay debts incurred in former years; and though the defect does not appear upon the face of the rate as it did in the case of Rex v. Wavell (e) and Tawney's case, yet where a rate upon the face of it purports to be what it really ought to be, a rate for the expenses of the current year, but is made for a sum avowedly larger than is necessary for that purpose, with a view to enable the churchwardens, out of the monies levied, to pay off debts incurred in former years the rate becomes excessive, and therefore illegal, according to the prin (a) 2 Salk. 531. (b) 12 East, 556. (c) 4 Ad. & Ell. 354. (d) 1 Bing. 201. (e) Douglas, 116. Burt against FELLOWES. 1843. ciple laid down by Sir G. Lee, in Brettell v. Wilmott August 8th. and King (a). BUTT against FELLOWES. What It must be shewn that a rate is excessive. is there to shew to me that the sum of 637. is more than sufficient to defray the expenses of the current year between the months of March and June? If the rate is excessive, the excess must be shewn ; it is not the possibility or the probability that the money collected will be misapplied, which makes a rate excessive; and there is nothing here to shew what, in the sum demanded, is beyond what is required for the expenses of the current year. I think the Court is entitled-I think Mr. Butt is entitled, to have it satisfactorily proved, that the rate is excessive; and not a mere assertion that it is more than sufficient to meet the expenses of the current year, that is, between March, 1839, and March, 1840. Under all these circumstances, I think this rate is a valid rate, and that Mr. Butt is entitled to payment of this sum, unless it be shewn to be excessive; if the rate be not excessive in itself, it does not become an illegal rate merely because a churchwarden may intend-a fact not to be presumed to repay himself out of it, expenses incurred in a previous year. There is, however, a circumstance, which I am sorry to see in any case; I allude to the account of the treating, it certainly does appear that many of the poor persons of this parish who voted in favour of the rate were refreshed; I say, that this is a circumstance which the Court is sorry to see; but it (a) 2 Rep. t. Lee, 548. does not necessarily vitiate the rate; but still the Court cannot see such a practice taking place in a parish without expressing its disapprobation of it. I think this rate is a valid rate in itself, and that Mr. Fellowes is liable to pay it; but I am not prepared to say, that I shall condemn him in the whole of the costs; in some part I necessarily must condemn him. [On being informed that the plaintiff's costs would amount to about three hundred pounds, the Court condemned Mr. Fellowes in the sum of 751. nomine expensarum.] 1843. August 8th. BUTT against FELLOWES. The Office of the Judge promoted by 1843. Nov. 11th. acts, "That against a cler gyman, for any offence against the laws Eccle be commenced siastical, shall On the 20th day of May, 1843, a decree, founded 3 & 4 Vict. c. on letters of request from the Bishop of Ely, issued 86, s. 20, enfrom this Court, citing the Reverend William every suit Herbert Chapman, clerk in holy orders, rector of Basingbourne, in the county of Cambridge, to appear, and answer to certain heads, positions, or interrogatories, and more especially, for having within the said diocese of Ely, offended against the commission of laws ecclesiastical, by refusing a second time, to wit, on the 26th day of May, 1841, being within two years from the date of these presents, to bury the corpse or body of Jane Rumbold, spinster, (an within two years from the the offence." On the 17th of February, 1840, a clergybury a corpse brought for in man refused to of a parishioner terment; on the 26th of May, 1841, a second request to him to do so was made, and refused. On the 20th of May, 1843, a citation issued against him from this Court. Protest to appearing, on the ground, that the two years, limited by the Act, had expired, overruled. 1843. infant) a parishioner of the parish of Basingbourne Nov. 11th. aforesaid, when duly applied to on that behalf, after TITCHMARSH Convenient notice or warning given on both occaagainst CHAPMAN. sions, (the first whereof occurred on or about the 17th day of February, 1840,) without any just or sufficient cause on either occasion. 66 The party cited appeared under protest, by reason, That the 20th section of the 3 & 4 Vict. c. 86, provides, that every suit or proceeding against any clerk in holy orders, for any offence against the laws ecclesiastical, shall be commenced within two years after the commission of the offence in respect of which the suit or proceeding shall be instituted, and not afterwards." That by the first refusal, in February, 1840, the said offence, if any, was complete, and that the time limited by the said act, for proceeding in such case, expired before the service of the said citation. The matter of protest came on to be argued. Phillimore, in support of the protest. The citation is not sufficiently clear and explicit; precision is essential to every process of this nature; on the face of the citation two offences appear, non constat, on which the promoter intends to found; it may be intended to proceed on both, Digest, lib. 44, Law 3, Gail's Obs. 154. Harding, (same side.)-All offences against clergymen, for ecclesiastical offences, are now regulated by the 3 & 4 Vict. c. 86, the Church Discipline Act; and the time within which such proceeding must be commenced is limited, by the 20th section, to two years. The first refusal, in this case, was in February, 1840, the citation is not issued until the 20th of May, 1843; upon the first refusal the offence was complete, and the statute began to run; the offence is of a nature which cannot be legally repeated with reference to the same object. A demand and refusal are evidence of conversion in trover, but if every fresh demand and fresh refusal operated as a new conversion, how could there ever be any limitation in an action of trover? If the offence be in its nature single, repetitions of it are not fresh offences, Cripps v. Dearden (a), Anon. (b). The principle of construction, applicable to this case, has been decided in the analogous cases of statutes of limitation at common law. Godin v. Ferris (c), Crook v. M'Tavish (d), Wordsworth v. Harley (e), Lloyd v. Wigney (f), Fraser v. Swansea C. C. (g), Saun ders v. Saunders (h). The Queen's Advocate and Addams, contrà. The 68th canon creates this offence, which not only by virtue of the canon, but from its own nature, is a continuing offence; it is a public scandal existing in the parish; the wrongdoer being the minister of that parish. If the argument on the other side be correct; if a party has committed an offence, and accidentally, no proceedings have been taken against him within a limited time, he becomes immunis as respects that offence. In 1843. Nov. 11th. TITCHMARSH against CHAPMAN. |