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By the 16th George II., Chapter 28, Section 36, the garden pennies are given
to the Churchwardens to be applied " for the maintenance and support of the
Rector, and such other uses as are hereby directed; and the surplus (if any)
shall be applied to such other parochial uses as the Vestry of the said new
intended Parish shall from time to time direct." I have great difficulty in making
out what—on the true construction of that Act—were "the other uses directed."
But, on the whole, I agree with Lord Justice Cotton, that, as there are
directions in the Act that the new Parish shall keep up the Church and Churchyard,
and various other Ecclesiastical purposes (which must cost money), and
no provision as to how these are to be paid, the construction of that Act should
be that the garden pennies are to be applied to paying the Rector, and to these
Ecclesiastical purposes; and that only the surplus (if any) after these have
been paid is at the disposal of the Vestry. If that be held, I think the garden
pennies were property appropriated by law to the payment of the Rector, and to
Ecclesiastical purposes, as defined by the 31 and 32 Victoria, Chapter 109, and
I cannot think it material that the produce of the garden pennies was not
sufficient to meet the Rector's salary. The Legislature did not—when passing
the 16th, George II., Chapter 28—know whether the produce of these garden
pennies would be more or less than that salary, and I cannot agree that the
word "appropriated" means exclusively appropriated. On this ground, without
deciding more, I think that the Order appealed against should be affirmed,
and the appeal dismissed with costs, and I move accordingly.
LORD BRAMWELL.—My Lords, I am of the same opinion, and for the
same reasons I just wish to add one matter shortly. It seems to me that in
this case there was a giving up and handing over to the new Parish of a portion
of (I do not know what the right technical expression is) the emoluments or
property of the Rector of Stepney, or the Stepney Rectory or Vicarage, whichever
it was—Rectory I think it was—a portion of those emoluments was given to
this new Parish upon the consideration of their doing that which this Mandamus
seeks to compel them to do. It seems to me that comes within the words in
the Compulsory Church Rate Abolition Act, " upon any Contract made, or for
good or valuable consideration given," and that upon that ground, without
more, the judgment of the Court below is right.
LORD FITZGERALD.—My Lords, this is a case in which the decision cannot
go beyond the case before us. The enactments which we have had to
examine are of that complicated and unsatisfactory character that, speaking for
myself, I could not say that a decision either way on the point before us would
be incorrect. The Appellants have failed to convince me that the decision of
the Court of Appeal was wrong, and therefore, upon that ground, I am obliged
to concur in your Lordships' judgment.
Order appealed from affirmed and
Appeal dismissed with costs.