Court Of Chancery, Tuesda...
LAW RI'PORT. The SOLICrTOn-GENEtR.& resumed his reply- to the argumnents against the injunction, The LoRn Cia,'NCELLO~R noticed an intimation whichl hiad ap- peared attached to a public-ation in the papers, of the mornhingexhort- lTag the people to behave themnselves at the conclusion of thias caume. He wishied it to be uinderstood, thlat in the course of nearly SO years in which he hail been connetctd with the Court, he bad never wit- nessed aniy indecorous conduct in it like that which seemed to be hinted-at : ancti this also should be understood-that however his liordship's mind might-be disposed at the end of the pleadings, be had no doubt whatever that any disorderly conduict on either side, of the kintd alluded to, supposing Ihis understanding of that intimation right, would be severely visitea by the Court of King'i Bench. The SOLICITOR.-GENERAL went on to show,that negative rights like this now claimed for the Svnod, to retrain iMr. Fletcher from preaching, were perfectly cogniztble by this jutrisaiction : nor would the'supposed strangeness of the,thing prayed for at all affect the claim to a sufficient reatedy; for even in common law, these incorporeal and "lmost airy right~s, which by that law were of most dit'ieult defi- niltion by "ceason of the strictness observed in their rules of evidesie, wee traed inthsmewy as themostsubstantialbenefitsofproaerty. He cited thie cpse of Great and Little Yarmouth, where the ri'ght in question was to restrain fishing, and the siale of fish in the borough market, whilch case wvas of H ilary Term, ' Charles I., (statedat length from Lord Hale, in Hargravze's Tracts'), and also the question of ejetment from a church, whiceh had not been tried from the time of James, "1Collins v. Brewster," Salkeld, p. 265, till lastyer when he hiad to argue the samne question for thle Univer'sity fOJx-_ ford, at the Oxford Asaizes. He repeated his argument to show the obligations on Mlr. FlEtCher to observe the provisions of the truist deed, as miuch as he (Mr. Fletcher) held the congregation bounid to observe them. The LoR.n CISAIrCELLOR said thlat thtis was a question like many others, where the thing prayed for mnight not be suchi as could be granted in this stage of the cause. If any one supposed that his Lordship was of opinion that MVr. Fletchter was not bound by the trutsts of that deed, he desired every such person to suspend his opi- nion until he had maxde further inquiry: but If M1r. Fletcher was boundi by the deca, ouight he not to have the benefit of the deedl? ancl could his Lordl,hip gran an injunction of this nature ex.-parte, and on isuch evideace in ga cauasel depending, even supposing that upon the hearing it shouldI taurn out that Mlr. Fletcher was bound by the deed to the extent contended for? He wishedlto hear of the Soli. Ieitor-General, if he knew enouaghiof the Synoelical rules and con- stitutions to say, whether or notany miember of Mir. Fletcher's con- gregaton would be liable to, exclusion from Christian fellowshifp for breachoat promiste of marriage ? The SOLICIT0R.GEwERAL Was so far prepared to answer, that he need only refer to the rule ot commnon law, in cases of visitatorial rigour complained of before those Courts. The Ljoan CHAxCELLOR said, that it might be taken for good law that the King's Benchi Court wvould niot interfere if the matter which had been in qusestion between the visiter and any other p-trty had been finally adjudicated by the visitor. He was thie more con- fidient of thins, because lie had been of counsel in a ease where the Bishop of Lincoln lhad been called upona to do a particular act, which he had refused to do. When they came before the Court of King's Bench, Lord Mlansfield'asked it' the Bishep hadl decided upon the mnatter in controversy ; upon wvhich he told the Bench that he had the Bishop's decision with himn in Court Lord Mansfield then said that they could not interfere. though none of them agreed with the opinion of the Bishop. His Lordshiip at another time oh. sierved two remarb-able things in the information-the first was, that it asserted thest any thing which the Synod judgedl to be so, might lvn -A '- t5,-n -- jlverse in. conversation r the seen wa, thttewhole of the substantiatl Part of- the sentence was left out of the infonnation. The SOLICITOR-GENERAL said that breach of promise of mar- riare was matter of ecclesiastical discipline and censure by the Pres- bytery, according to e4ie affidavits. Besides, why did not Mlr. Fletcher swear that it was not matter for theeir discipline and censure, as-hewas bound to do? The Loan CiiANCErLORt.-Is that so, Mlr. Solicitor ? Is AMr. Fletcher bound to swear upon an ex-parte motion against a fact to which you. don't swear at all ? The SOLrC5TOR.G.ENEILAL said that they did swear it by the affidavits of thieir witnesses. The Loan CHIANCELL.OR.-Yes; but in a very roundabout way; you have nowhere sworn to it yourstlves. The SOL ICITO it.GENr nIAL referred to the rules and discipline of the Scotchl Church, as expounded inx the book ot Presbyterian Canors, which enumerated promise-breakert in conjunction withi liars, detractors, and brawlers, as Persons fit for the-ir censures many of which, though seemingly harsh because they had been PUrged away by theReformation fromi the ~ngltsh Episcopal Chlurch, weeye erely retained,and not newly created and nowv oppressively enoce,from that which was, before the Refonnsation), a discipline common to the whole of the chiurch comnmunion. He expatiated on the scope and tendency of the powers of the Ordinary to suspend for civil or ecclesiastical prposes, in ortier to justifIy the order of the Synod terved upon M~1r. Fletchier, and to dlefend their viSitatorula rights. The LOan CstAleCErLLOR said, that this was a question not affe~cting the eight otf the jturisdiction to interpose, but one also in whichi, regard being had to thie immediate stage of thle proceeding, and supposing it in accordance with tire usual exee'cisc of tueo ,ris. diction,istwouldbheprq,per to rant the present motion. He dild not hszard atny proposition whic~ any gentleman experienced in thje practice of that court wvould think extraordinary, in stating that there might ibc very grievous injustice in granting that upon ototion in a au3se, whichi the Court woaldl have not the least hesitatio in gra'nt- ing, upon the hearing of that cause brought by duo course onflproceed.. tog before tite Court. Thiere were few cases--his long exp,erience re. minded him of none of anature resemblingthiis-exactly like it. The application here was to carry into execution a proceeding of a reli- giouis body-call it by what name thiey would--sentence or fulfililent of a contfract. he that conitract expressed or implied, obvious or other. wise, on the part of the condemned-against an alleged niember of that body, wvhich sentence was to expire witlh all its consequences on the 25thi of April next ; and this in a case where it was quite ob- vious, that if upon the-further heA~ring the Couirt shouldi see clearly that it had originally no jurisdiction, or that, having diei jurisdic. tion, it oughit not to have been exercised, an orider of the Court like that prayed for would work very considerable injustice. The coun- sel en the other side had argued that the difficulty was equal; if the injuznction ought to have been ranted,aad was not, thensthe mischief woilfihe asformidable as in theoppositecase. Hisatt-awer wasthis4- that the practice of tie Court ASsClearly against granting an injine-. tion, uinless it couild he shown, that uipon the hearing of the eause it would he called on, for a decree, agreeing in its naturc anda restric- tionis with thiose of the tnjunctiou. He had in this very hearing,al. luded to the injutictions, somietimnes prayed to restrain a tenant for lifie froin cuttinig down timber, if,th, tenant died In the interinm be- fore the hearing of~ thec cause, the righit to cuit timber whichr asalt. mighit turn aut weas really in him, would cease. In suc3s cases, thle Couirt hail sonmetimes said, 4"As ~vou have. delayed the enjoymlent Of his righit till it has ceased, the tim-ber shall be cut, anti you who have dePriveti him of it, sihall pay thec producee of it into the C,1our, thant it maay be placed at thle disposal of his executor&." In this ease, there was a mutch greater diffficulty. It. was allowed oni all hands, that thle gentlemen appointed to officiate in the chapel ad initerimn were not entitledi tr any of' tire mioney which the use of the chapel might prodiuce. Hie left the question apart, as to whether this wa-s or wras not a charitable ihistitution within the statute. For tite present argument, he agreed withi those who had as,serted or ad- mnitted it, thaLt the susPension was not in anyv way to affect the ire- ceipt andi application of' the sevenue, nor to deprivc Air. Fletcher of his salary, thlough enjoined front preaching. HIe wanted theni to know upon, whlat grouind lie could say thant the funds ntust not continue to be applied as thxey hiad hitherto been aplied. There mig'ht he susPetlision, according to tlte law andvusages, of our own chiurch, from exerci3ing the ditties of a mitnister, withiout deprivation of the profits of his benefice. In suich cases, the ordinarv would take care that the- duties of the church should be fulfilled', and tite remuineration wnuld be deduicted from the Prioduce of tile living. But that rule, how,ever just, Was not ap- plicabl hee o ol tb, according to the provisions ot the trust ded.Wiat, thlen, Ought the Court to dlo? Hie first of' all adnro- nished those who nsigltt be affected by his opinion, not to concluode hastily, that there coulti be no grDund for the interpositi!on of the Court disicovered upon ithe heArTing of the callse. It niight be wor- thyof their esinsidleration, whtethcrs aft'er thle disclosuires m4de- in these. -roceedings-whichi he for one deeplY regretted -.and these tronsations still went on, the attention of some of His lilaje8ty'8 ,couirts mnight not be effectual ly called uipon thecm. ftwainoiduty'ofbhis, and he was grlad to be rehe'ved front hlaving to corminent.upon the mio- ral conduct or the demerits of either party. H& Merely offered his advc,witli a view; to what would be expected from themn in regard: to thiroi noTral and religiokus character, andi the demeanour' whichi was fit to be observed in a place of worship, Lmong a p opic distin- guished b.y their decency, temper, anid moderation. ib'ere wvas an. othier subject of a moegnral na-turceupon-which he would briefly touch, in whicis hisg opinioti had not varied fromA first to litst in thle slightgat degree. Since the act of tolera~ii0n, there could'be no doubt that- it liadl becom-e the- dut of' courts of juistce, accord-. igto thleir relative powers and functions, to give tile full lbegntlit of their auithosity in a-ssisting relJgious bodies of all tenomai. nations to enforce their. discipline astetl rejusiaions where there wasi a contr-st- to observe them, providetl that niothiing appearedl In that c8n~acehosile o pbli tooalsmidagainst the law of t he land. Thatopiionhe ad imslf vined n giving judgtment in C" At- torny..-aneah . Perso." -Whee- ersorno br5ought Uptietions oP proert beoreours b supenion orany other mianner in which. it mghtbe ubjcte tother cnsieraion, andt it could be shiown tha th prpery hd eenin he irs Istance made applicable to a p e 1- . I . m l ;. l~ COP" WA i f paKticulari,ode of relfiE!OU5wrO-"- a&ctpih r4^'' thatitwas a pUed to a-m6de of prs1pt y toteli ad 2e 2be pUrposes to wnich it was firstsiwgnedi,. eC Wou ildiotptrmit etutn a majorityof theindividuai to departfrosheptipeltowhich the propertny *s in the first place appli4bie. They mifght fly of from. the doctrines fist preached,. but they could not be alawled to alter the application of' the funds, unless thatr;ght had be-n especially providgd foe them in the contract. Hie justified kis own tcruples in.not deternitnlng any points which were merelyincidenJ to a caset though he woild nqt quarrel with the gute ofthosejudes who might disapprove of thatabslinence. He also took -e eit for thatimnpartiality of opinion ,whichenable4 him,-atany.timne of his life and after whatever cost of labour in inForaning himself, to throw away 'the opinien first acquired,forthepurpose of tnakingroouln bis mind for a better opiMion. In this cse, Ole grst question wa- what was the nature of the coyenant with respect to thepoweisofthe Synodover their congregations ? and then, What'degree of obedlence was securedfrom the defendant tothose powers ? At one:timne he had thougbt it indispensable to the motion, that he Shliouldlhaveevi. dence of the recognition by the law of Scottand of this body calUed the Synod and also of thle powers which that law imparted to them for the preservation of their church disdipline. He was of opinion now that he did not need that evidence, though it rnight be wanted if the cause cameon for hearing. If this congre. gation thought proper to connect themselves with the Synod b1 a contract containmng nothing contrary to the law of this country, w6e. ther reeable to, or enforceable bv, the Sctch law or not, they cove- nanted to act obediently to that body, to observe its decisions, to maintain the modes and forms of worship which it niight decree to be observed. There was another and far more dlrfDettt question. Was Air.FIetchera part to that trusttdeed ? - Judging fom all thAt had passed, and from Ilr. Fletcher's own declaratlons, his Lordship was of opinion that he was a party. The deed express;l describe d thia as a congregation in conneXion with the Assocmatea Synod of Scotland. There was a provision in the deed, that in cac of'ertain events, if the chapel rnut be sold, and the tru2stees wire not able to act, the Presbytery must direct the sale,and apply theturplus funds. He knew nothin in which the dissenting bodies ought to be more careful than in the instruction of those deeds of trtust and other in. struments, so as to put them out of the pale of cavil, and prevent doubts where disputesmightarlae. Undoubtedly, It required the ex- perience of a long life to enable a expert practitioner to foresee those accitdent57 ba2t he vas justified in saying, that in all the ecases of the kind which hnd came before hlm, he wvas struck with the defecta of the instruments in these prticulars. *Vas this deed an exception? TRne framer had wvisely contrived rules and regulations for the deter. .nisation of those who were or wPere not to have votes in the appoint. nent of the minister; but the Synod had nothiRg whatever to do with the salary. The consequence was, that themrnajority of the congregation might altogether elude the equity of the contract on that side, by modifying their grants. lNow, certainly, it was a maxim in ecclesiastical ordinances, that. the labourer was woTthy of his hire. True, that tbe pv1viIpl4 here was that the pay of the minitter should depend upon the good-will of his congrega. tion. But suppose the minister should declinc to work at tle salary allowed him? Suppose, on the other hand, thatthe Synd should suspend him and appoint others-then his salary could not be taken away unless the majority assented. Many other cases might arise which ought to have been provided for by reference to some fiendly tribunal whose decision should have been mide binding by the deed. Hiis Lordshlip then. arter pointing out the Insufficiency of the case with respect to the deficiency of evidence as to the rules anP. or- dinances, and the effects of the law upon them, said, that he could not feel justified in granting the motion whatever mright be the re- sult of their applications, either to tiLs or any of the King's courts which were open to their claims of redress. fle held Alr. Fletcher and the congregation bouud by their ehgagement to observe the rules and ordinances of the Presbyterian Synod; but the deed limited itby these words.." so far forth as way be applicable to a society living under the laws of England." The Court had nothing like asufnciency of information to be enabled to sayvwhether there had or had not been a breach of that engagement; otherwise this Court might grant the injunction in a cause whicb, when it e,hould come in six msonths after, miglht leave nothing but a ques- tion of costs. He deslred it to be clearly understood tbat be de- clded upon the deficiency of the information, and by no means upon the nature of the question; and on that ground he saw no pre. sent necessit for the interfrence of the Court. It was agreed that there was no question of property before him. It was his duty to refuse the injunction, though that did not at all afect the right of the parties to a hearing of the cause. IHe woubl give no costs or at any rate lie would not determine for the granting of costs without a few days of consideration. COURT OF CHANCERY. TWEsDAY, Nov. 23. I ?RESBYTERY OF SCOTLA?fS V. REV. ALEXA21DER FLETCHER.