PRIV. Co.]

PARKER v. LEACH.

[PRIV. Co.

Dr. Deane, Q. C. and Dr. Spinks for the resp.
Cur. adv. vult.

the said chancel known as Mr. Felix Leach's pew | Moreover, no sufficient title had been shown to the (the plt. in this cause), the Waddow pews, Mr. pew in question by the resp. Taylor's pew, the Browsholme pew, and the other pews in the said chancels, were not taken down or interfered with during the said reparations. That at such time the steeple of the said church was not disturbed, and that the foundations for the present north and south side walls were placed precisely on the site or situation of the old walls, and that the said church is now no wider and no narrower than it was previous to the reparation aforesaid.

The Chancellor (G. H. Vernon) in giving judgment, said:-In giving my decision in this case, I may differ from my old master, Dr. Lushingtonas Rochester is only a co-ordinate court with this diocese. I cannot really take upon myself the serious responsibility of giving, in consequence, any theoretical views upon the subject. I myself have known cases in which there have been a large amount of construction and destruction, in which also the church had been attended with extensive repairs; and, perhaps, more extensive than in the present case, and which had been recognised by the Archbishop of York. Now, I have known cases in this diocese, in which there have been large extensions of a church upon a churchyard, and it was not considered necessary to re-consecrate that church, although it had been enlarged. There is precisely the same feature in the present case. The chancel remains nearly intact, and as to the question about removing the altar table, it would be a monstrous piece of superstition to say, that when removed, it could no longer be an altar. The moment the communion-table was removed to any part of the church, it was said it was divested of the ecclesiastical liabilities attaching to it, and also that God was not present. Whether it was moved east, west, or north, I think it would be monstrous superstition to believe such a thing. For my part, my feeling is that He is everywhere present, and not in any one particular spot. Something has been said about the pulling down destroying the consecration. It does no such thing, as far as the ecclesiastical power goes. With regard to the validity of marriages performed in the church in question, and the Act of Parliament quoted in reference to it, that Act was rather retrospective than for the future, and therefore did not affect the validity of such marriages. And then the question affecting the removal of the altar table: I think the 4s. 8d. spoken of for a new table seems rather to have been for repairs, such as a new top to the old table; and whether it was placed in the spot spoken of, or whether it was put in any other part of the church, it was still a part of the building, though the services might not be held there. I consider that in this case it was a matter entirely at the discretion of the ecclesiastical power, and that no second consecration was necessary. The bishop did not regard it as necessary, and he had acted with good sense in the matter. There is, therefore, collateral testimony, and a practical opinion which I shall respect, for he was applied to to consecrate the church, and did not. When this very cathedral was destroyed by fire, its roof, and every part almost of the interior, had to be restored; but there was no re-consecration when it was brought back again into the service of the public. I overrule that protest, and I make no order about costs.

Stephen, Q. C. and Bayford, for Mr. Parker the app contended that re-consecration was necessary after the rebuilding of the church in question, and that ceremony having never taken place, the court had no jurisdiction.

Gibson's Codex, 189;
Battiscombe v. Eve, 7 L. T. Rep. N. S. 697.

Lord WESTBURY.-The app. in this case is the perpetual curate and incumbent of the parish church of Waddington, in the diocese of Ripon and province of York; the resp., an aged gentleman, resident within the same parish. There is in the chancel of the parish church a pew, claimed as belonging to the Hon. Mrs. Ramsden, in respect of her being the owner of an ancient messuage within the parish. Mrs. Ramsden has given licence and permission to the resp. to occupy that pew, of which she is the proprietor; the resp. has had the use and enjoyment of it for nearly forty years. In the month of Dec. 1862, the app., without the authority of the churchwardens, appears from the evidence to have gone to a carpenter, an inhabitant of the. parish, to have brought him into the chaneel, and to have pulled down and entirely destroyed the pew which the resp. had been in the habit of enjoying. This was followed by an action for perturbation of the pew, commenced in the Diocesan Court, and removed by letters of request to the Appellate Court at York. To the libel of the resp., the app. pleaded that there was no jurisdiction in the archbishop, because the church was not, in law, a church at all, never having been re-consecrated since its general repair or rebuilding in the year 1826. Now, the app. has been himself for three years the incumbent of the church; Divine service has been celebrated there by him, and by his predecessors; baptisms have been performed there; marriages have been solemnised there; the Holy Communion has been administered in it for nearly forty years. It is a plea, therefore, pregnant with the most formidable consequences, if it be found to have any support in law. The points which have been argued may be thus arranged. It is contended by the app., as a general proposition, that if a church be taken down and rebuilt, though it be rebuilt again upon the same foundations, the new edifice requires to be re-consecrated; and until it be re-consecrated the app. contends that it can have none of the character of a church; that such an edifice. in point of law, is to be regarded no more than if it were any common building within the parish. Such is the legal proposition which is first put forward on the part of the app. The second proposition is, that the church in question, viz., this parish church of Waddington, had been rebuilt in such a manner as to bring it within the scope of the first proposition which he lays down, viz., that it was wholly rebuilt, and therefore required re-consecration. The third ground that has been maintained by the app. is a technical one, relating to the form in which the title to the enjoyment of this pew was laid by the resp. in his libel. To prove the first proposition, viz., that a church rebuilt upon the old foundations, if it be entirely or substantially rebuilt, requires re-consecration, very little authority has been produced. No decided case has been cited to their Lordships, with the exception, perhaps, of a case noted in Burn's Ecclesiastical Law, in which it is said that the church of South Malling having been polluted and pulled down, was new built and then

used for divine offices without new consecration, Archbishop Abbot interdicted the minister, churchwardens, and parishioners from the entrance of the church until the church and the churchyard thereof should be again consecrated. The particulars of the case are not given. It is a citation from Gibson's Codex, and it can hardly be regarded as anything like a solemn legal decision on the point. Two things, however, appear to have occurred, viz., that

PRIV. Co.]

PARKER V. LEACH.

while the act of rebuilding was going on? It was impossible that the answer to those questions could be either that these things were illegally done, or that the tower and the other buildings had lost their original sacred character acquired by virtue of the prior consecration. Another question was put to the learned counsel: whether there was any form given, or whether any instance could be cited of a partial consecration of a church, i. e. of a portion of the church? Because the rule being, that what has been once consecrated shall not be re-consecrated, the consecration in the present case must be limited entirely to the body of the church, excluding the chancel and the tower. That would be an anomaly of which no example or precedent has been mentioned. Reference was made to a case which occurred before Dr. Lushington in the Court of Arches-the case of the parish church of Hanwell-and words were relied upon as seeming to intimate the opinion of the judge that in that case the church had lost entirely its sacred character, and would require to be re-consecrated. The note of this case, which is a very short one, must be accurately looked at for the purpose of seeing what was the nature of the application, and the question which the court was called upon to decide. The application was by a parishioner for a faculty to make a burial-place for himself and his family in the parish church, to the exclusion of others. At the time of the application, the note goes on to say, there was no parish church, the old church having been almost entirely taken down, and a new one in the course of rebuilding. Now, an application for a faculty to make a burial-place is one the propriety of which it would be impossible to determine until it was ascertained what was the area of the church, and in what manner the interior of the church would have to be arranged and disposed of. Dr. Lushington's answer to the application was this "I cannot grant such a faculty. How can I grant a faculty for a church not built?" And the answer appears to us to have been a very conclusive one to that application. Then words are attributed to the learned judge which could hardly have been used by him as they are here reported; but if they were so used, they were obiter dicta, not necessary for the case before him. He is reported to have said, "If the altar has been taken down, there must be a re-consecration, as my jurisdiction depends entirely ratione loci." If the learned judge used those words, it is quite clear he must have borrowed them from the equivalent expressions which are found in John de Burgh and other writers at a period anterior to the Reformation, and intended to apply wholly to Roman Catholic churches. In a Roman Catholic church there is an altar, or place where the priest offers sacrifice. In a Protestant church there is no altar, in the same sense; but there is a communion-table on which bread and wine are placed, that the parishioners may come round it to partake of the sacrament-the supper of Our Lord. It is impossible to derive from language applicable to a Roman Catholic altar a conclusion of law applicable to a Protestant church, which conclusion cannot be drawn unless you hold the communion-table to be in all respects equivalent to the altar of a Roman Catholic church. The note afterwards goes on to say that the motion was renewed subsequently; and "the church having been rebuilt and consecrated, the faculty was granted." It is impossible to tell (if it be correct that there was a re-consecration of the church) what were the circumstances which induced the supposed necessity for that re-consecration. We cannot accept the language as amounting to a judicial determination that when, in the repair of a church, a new communion-table is put in the place of an old one, the church must be re-consecrated. But that brings us back to the inquiry

[PRIV. CO. (which is one of fact), has this church been rebuilt in the sense in which the word rebuilding must be taken to be used whenever reference is made to the re-consecration of a church that has been rebuilt? We repeat that this was not the rebuilding of an entire church, but was the renewal of a portion only; that it was done under the authority of the diocesan as matter of reparation, and not of rebuilding, and that there remained untouched an important portion of the original consecrated structure, in which the offices of a parish church still continued, without interruption, to be performed. Upon these grounds, therefore, their Lordships act; and confining their decision to the objection to jurisdiction, they found it upon the fact that there was no rebuilding of this church, that it is not a new church, but part of an old church, with new buildings introduced into it by way of repair; and finding this was done by the authority of the diocesan, under a legal faculty for the purpose, they are of opinion that the church never ceased to be a parish church so as to require re-consecration, but remained subject to the authority of the diocesan. They decide, therefore, that the protest against the jurisdiction in the court below was rightly and properly overruled. The point remains upon the nature of the case as stated by the resp. in the libel. Their Lordships have no doubt, from the manner in which the title of the resp. is pleaded in the libel, that it will, when it is substantiated, give him in law a good right to the enjoyment of this pew. It is a pew in the chancel, which legally may belong to a person in respect of the ownership of a house, or which may belong to a lay rector; it is very different from a pew in the body of the church, which can only be acquired by virtue of a faculty, or by virtue of immemorial possession, i. e. by prescription, which is founded on the notion of there having originally been a faculty. Their Lordships think, therefore, there would be no weight in the objection made in point of law, even if it were at present capable of being raised by the app., from the course which was taken in the court below; but we find that no such point was raised in the court below; no objection on that ground was urged upon the judge in the court below; the only question which was argued there was the question which is raised by the plea of the app., viz., the plea alleging want of jurisdiction, which, we think, was properly overruled. We cannot imagine anything more dangerous or more deplorable than to come to the conclusion which the reverend app., who has for three years been the incumbent of this church, seems not to be reluctant to arrive at, viz., that this fabric has been for the last forty years an unconsecrated place, in which the rites of the Church have not been duly performed, in which, therefore, all that has been done would, in all probability, be legally good for nothing; notwithstanding that successive diocesans, notwithstanding that all anterior incumbents, notwithstanding that the whole of the parishioners have been led to believe, and have believed, that the church needed no re-consecration; that when it was repaired it could be re-occupied and restored to its original purposes without the necessity of that solemnity. We are happily able to arrive, without difficulty, at the conclusion that there was no need of such a ceremony. We regret that such a question should be raised by the app., and we shall advise Her Majesty to reject his appeal and condemn him in costs. I may add one thing to avoid the possibility of its being supposed that any word has been used in this place in a manner irreverent or contrary to the doctrine of the Church. In speaking yesterday of the usage of dedicating churches to the Saints, or to God the Son, or God the Holy Ghost, I spoke of the second and third persons in the Trinity, using, inaccurately, the word "inferior; "I meant only

DIMMOCK V. HALLETT.

the suit, the resps. to the present petition, that the auctioneer, although he did state that the sale was to be without reserve, stated also that the parties interested in the estate had liberty to bid at the sale. That statement is met on the part of the purchaser, not by denying that the auctioneer did make that statement, but by saying that he, the purchaser, did not hear the statement which the auctioneer was alleged so to have made. Now that seems to me purely a question of fact, whether, upon the facts before us, we are to consider that the purchaser was or was not aware that liberty had been given to the parties interested in the estate to bid at the sale. And, upon the evidence in this case--not intending to impute to the purchaser any wilful misstatement on his partI think it is impossible for us to come to any other conclusion than that in point of fact he must be taken to have known that there was liberty to bid reserved to the persons interested in the estate. Because, how does that case stand? As it was left yesterday, there was the evidence of Mr. Dimmock, the mortgagee, and of Mr. Oakley, the auctioneer, distinctly stating that Mr. Oakley, the auctioneer, though he did state that the sale was to be without reserve, also stated that the parties interested in the estate were at liberty to bid. And this morning there has been produced other evidence in the cause which was before the V. C., the affidavits of Mr. Baxter, Mr. Morgan, and Mr. Parker, all of whom say most distinctly and clearly that the auctioneer stated the fact that the parties interested in the sale were at liberty to bid. These were persons who were all in the auction-room during the time of the sale; they heard that statement, and I think the evidence fixes the point, and that judicially we must consider that the purchaser heard and knew of the fact that the parties interested in the estate had liberty to bid at the sale. Now, questions have arisen during the argument as to what could be the meaning of the statement that the sale was to be without reserve, but that the parties interested in the sale had liberty to bid? Certainly the two statements together are not very consistent. But there are the facts, and the only conclusion to be drawn from the statements is this, that in truth the statement that the parties were at liberty to bid was a qualification of the more general statement that the sale was to be without reserve.

And if the purchaser knew of the fact that the persons interested in the estate were at liberty to bid, and went on bidding with that knowledge, and with the knowledge that the persons interested in the estate were bidding against him, no question of law seems to me to arise. In that case I think it would be impossible for the court to relieve him from the purchase on the ground that he had been deceived. Therefore, it is immaterial to enter into the various questions of considerable importance which have been raised upon this sale, as a sale where there has been an announcement that it is withThe questions of law which have been raised upon it seem to me to have no bearing upon the present case, which depends upon the fact whether the purchaser did in truth know it.

[CHAN.

us does not bring up the case to that extremity, and I can consider it as nothing more than a colour given, a mere flourishing statement made by the auctioneer of the value of the property.

Then the next point which is taken is one perhaps of more importance. It is stated in the particulars of sale that "all this property is situate in the district known as the South Level, and is within the limits and powers of the Acts known as the Hatfield-chase Warping and Improvement Acts 1854 and 1861, whereby in course of time it may be covered with deposit, locally termed warp,' from the waters of the river Trent, and considerably improved at a moderate cost." Now, the evidence upon that subject stands thus, as I understand itthat the canal by which the waters of the Trent are to be conveyed to these lands does not yet approach nearer than three miles to the property, and that 257. an acre is the lowest amount at which the land could be covered by deposit. I think the expense as estimated by the purchaser is 27. an acre. Undoubtedly, if it had been stated here that the land could be covered within a limited time with deposit, and it appeared that the canal could not be brought to the land, or the deposit carried on to the land within a lengthened period, there would have been a false statement. So, again, if it had been stated here that the land could be improved at a certain cost, and it really appeared that it could not be improved without an expenditure far exceeding that cost, then no doubt the purchaser would have reason to complain, and probably would have been entitled to be relieved of his purchase upon that ground. But the statement here is one which should have put the purchaser upon an inquiry on the subject within what time, and at what cost, the work could be accomplished; and if he has chosen and thought proper to buy the estate upon a report so general, I think he has no right to come here and complain of having been misled.

The next statement, however, seems to me to be of very much greater importance. The particulars stated that a farm called Bull Hassock's farm, then in hand, had been let at rents beyond 2907. 15s. antecedent to the period when Mr. Richard Hickson became the tenant of it. But under what circumstances did those lettings take place? some of which, I think, were as high as 5007. a-year for Bull Hassock's farm, and the Creyke's Hundreds as they are called, which are 130 acres or more I believe; these had been let altogether for 500/. a-year. And there is another rent intervening before Hickson became tenant; they were let again at somewhat less rent than 500l. a-year. But at Michaelmas 1864 Mr. Hickson had quitted this farm, and although there does not appear to have been any actual tenancy carried into effect after Mr. Hickson quitted the farm, and before this sale took place, this had occurred-Mr. Dimmock, the mortgagee of the estate, and who was in possession, entered into an agreement with a gentleman of the name of Nelson, to let him Bull Hassock's farm for 15s. an acre, which would bring the rent to 225l. per annum. That agreement was not carried into effect, for it appears that Nelson desired to be relieved of the agreement, and paid Another ground is taken for discharging the pur- the sum of 20l. to Mr. Dimmock in order to be quit chaser in this case. It is said misrepresentations were of the bargain. Then is it a fair report upon a parmade in the particulars of sale. A variety of misrepre- ticulars of sale that "the property was lately in sentations contained in these particulars of sale have the occupation of a tenant at 2907. a-year when that been pointed out, many of which I think quite tenant had been out of the occupation for a year unimportant. For instance, it is said that reliance and a half pretty nearly, and there had been an was placed upon the particulars of sale having stated intervening agreement with a third person to that the land was "fertile and improvable land," become the tenant of the estate, at a rent of 651. whereas the evidence goes to show that it was less than the tenant Hickson had paid for the abandoned land in some parts. A very extreme estate? What is the effect of such a representation case might possibly occur in which that might be as this appearing upon the particulars of sale? The regarded as such a false statement as to discharge purchaser would naturally expect from this that he the purchaser; but certainly the evidence before was immediately to come into possession of an

out reserve.