except one, who was not a rate-payer, had polled at the election. Sir J. Campbell A. G., Thesiger and Swann, shewed cause (a). The circumstance that all the applicants for this rule, who were voters, took part and acquiesced in the election is of itself a sufficient ground for discharging the rule. It appears also that the rector adjourned the poll to the most convenient place, and that 8 o'clock in the morning was fixed upon to enable persons, who chose, to vote before proceeding to their own private business; that Grissell and his party had a large majority; and it does not appear that the mode of conducting the poll excluded any voter. Campbell v. Maund (b), and Reg. v. St. Mary, Lambeth (c), may be referred to on most of these points. The object of this rule seems to be to raise the question of the rector's right to preside at the vestry and regulate the polling without the concurrence of the vestry. But the 58 Gev. 3, c. 69, s.2, expressly recognizes the common law right of the rector to preside, for that statute enacts, "for the more orderly conduct of vestries," "that, in case the rector or vicar, or perpetual curate shall not be present," the vestry assembled shall appoint some person to preside in his place. In Wilson v. M Math (d) Bayley J. expressed an opinion that the language of this statute was strongly in favour of the minister's right to preside, and the judgment of Sir J. Nicholl, which is given in a note to that case, is a direct authority in favour of that right. If the rector has ex officio a right to take the chair, the further right must also belong to him, as chairman, of fixing the times and places of polling, and of doing all that is necessary to the orderly conduct of the business to be transacted. (a) On a former day in this term (May 30), before Lord Denman C.J., Littledale, Patteson and Williams Js. The chairman of the ves (b) 5 A. & E. 865; S. C. 1 N. & P. 558. (c) 8 A. & E. 356; S. C. 3 N. & P. 416. (d) 3 B. & Ald. 241. 1840. The QUEEN บ. D'OYLY. 1840. The QUEEN 2. D'OYLY. try must have the same authority in these respects as the returning officer in parliamentary elections. In Stoughton v. Reynolds (a) there is a mere obiter dictum that the vicar has no right to preside at the vestry, but the case will, perhaps, be cited in support of the rule, as an express decision that the right of conducting proceedings at vestry is in the parish at large. But that case turned entirely on the propriety of an adjournment, the vicar appears to have irregularly adjourned, without previous notice, to the interruption of the business in progress, (which is taken to have been the ground of that decision by Lord Denman C. J. in Rex v. Archdeacon of Chester (b),) and for the purpose of serving a particular candidate. As to Rex v. Commissary of Winchester (c), the question in that case was as to the legality of an adjournment at which the whole meeting concurred; no question arose as to the power of the chairman in this respect, and what Lord Ellenborough C. J. said, as to the churchwarden appointed by the rector having no right to preside because "he is not sworn," does not mean because he was not sworn as chairman, but because he had not been sworn in as churchwarden: in Lord Ellenborough's opinion, therefore, the rector would certainly have been a good chairman. But Rex v. Archdeacon of Chester (b), and Rex v. Churchwardens of St. Mary, Lambeth (d), where the facts were substantially the same as in the present case, are express authorities in favour of the chairman's right to adjourn, and to regulate the manner of polling, if this right is not exercised to the interruption of business. Sir F. Pollock, Cresswell and Hayes contrà. It is most important that the rector, who appoints one churchwarden, should not be vested with any authority, unless absolutely requisite, which may enable him to influence the election of the other churchwardens. But if besides appointing one (a) 2 Str. 1045; S. C. Lee's Cas. temp. Hard. 274, and Fortesc. 168. (b) 1 A. & E. 342; S. C. 3 N. & M. 413. (c) 7 East, 573. churchwarden he is to regulate at pleasure the manner of electing the others, on which occasion he has a casting vote, he may indirectly appoint all the churchwardens of the parish. If the general law is clear, that the minister and parishioners together are to have the controul of the election, the circumstance that the rector gave ample notice of his intention to take the controul upon himself can make no difference. If the rector presides, he has no more power than other persons who might take the chair in his absence. Rex v. Archdeacon of Chester (a) does not apply, for the notice of the manner of polling was given by the churchwardens who summoned the meeting, and no counter notice was given of any intention to object to the course prescribed. Lord Denman C. J. there observed, "Those who summon a meeting of this kind must necessarily lay down some order for the proceedings; and I think it is competent to them to say that the meeting shall be held in one place, and, in a certain event which may require it, shall be removed to another." In the present case the rector had nothing to do with summoning the meeting; it was summoned by a churchwarden and overseer. But Stoughton v. Reynolds(b), which has never been overruled, is conclusive against the power which the rector has assumed. In the report of that case in Fortescue occurs this passage in the judgment of Lord Hardwicke C. J., " At the common law anciently the sheriff could not adjourn the county court; for the suitors, not he, were the judges of it, though now the law has put that power in him. But in this case the law has not placed it in any one; wherefore we have not the power to take it from those who have it to place it in those who have it not." There is no pretence for discharging this rule on the ground that the applicants by voting acquiesced in the proceedings which they seek to set aside, and Holt v. Meddowcroft (c) affords a strong authority that a party who once (a) 1 A. & E. 342; S. C. 3 N. & M. 413. (b) 2 Str. 1045; S. C. Lee's Cas. temp. Hard. 274, and Fortesc. 168. (c) 4 Mau. & S. 467, 1840. The QUEEN บ. D'OYLY. 1840. The QUEEN บ. D'OYLY. protests, "being as it were tied to the stake," is not to be taken to acquiesce, because when he is dragged on he endeavours to make the best of an adverse and irregular proceeding. [Lord Denman C. J. If there had been previous acquiescence in the rector's arrangement, that would be material, but the subsequent acquiescence is nothing.] Cur. adv. vult. Lord DENMAN C. J. now delivered the judgment of the Court. We think the proper place to elect churchwardens is some convenient place in the precincts of the church, and that the rector has a common law right and authority to preside at such election, as being the functionary who is at the head of the parish for ecclesiastical purposes; and though the churchwardens, when they are once elected, are the temporal officers of the parish, yet they are so far connected with ecclesiastical matters, that the rector has a clear and undisputed right to interfere in bringing them into existence. If this matter had now been agitated for the first time, and if there had been no authority either the one way or the other, still we should have had no hesitation in giving this as our opinion, but it appears to us that the cases that have been decided most abundantly confirm this opinion, while the act of the 58 Geo. 3, c. 69, is to our mind most decisive. That act does not confer a right upon the rector to preside, that would not have been proper, as it might then have been said to have suggested doubts at least as to his right before; neither is it declaratory that he shall preside, but the language contained in it is an assumption and recognition of that right to preside, by making a provision with reference to the election of a chairman, in case of the absence of the rector, and by proceeding to state how that defect shall be supplied, thus clearly shewing that the right to preside was in him. Then, assuming that the rector has the right to preside, we next come to the question of what are the powers which that act confers upon him, and whether those powers have been exercised, in his function of presiding officer, rightly or otherwise than according to law. The statute in question requires notice to be given of the vestry meeting, but does not say who is to give that notice. We apprehend the rector, quâ rector, is the proper person to give that notice; he is for this purpose clearly at the head of the parish, and it devolves upon him to do so. The meeting is then held, the candidates are proposed, and a shew of hands taken. Somebody must then make a declaration, stating upon whom the election has fallen by the shew of hands. Who is to do this? Certainly not the body of the parishioners. That would only be doing the same thing over again. Certainly not the churchwardens; it does not fall within their duty. But it is clearly the person presiding at that meeting who is to make that declaration. A poll is then demanded. Now the parishioners, in vestry assembled, are not the persons to consider whether that poll is necessary to be granted or not: it is demandable as of right by them; no one can refuse their demand of it, but the president of that meeting is the person alone who is to grant it, and in the ordinary course of things, in the absence of other business, that poll is to be proceeded with immediately. But, if there is other business before the meeting, or, if there are a number of voters remaining unpolled at the time of its close, an adjournment of it then becomes indispensable. Then arises the question, who is to determine the matter of adjournment? It was said that it was not the chairman who was to determine that question, but the majority of the voters. How are you to ascertain the majority in a constituency consisting of many thousands? Suppose the majority of those present were to decide in favour of an adjournment, then the second question must arise as to the place and time of adjournment. Again, suppose the majority were to vote against an adjournment, the consequence would be either that many voters would be 1840. The QUEEN V. D'OYLY. |