1844. MEDDOW- v. HUGUENIN. that the sentence of Sir William Scott must be taken as a nullity, from the circumstances under which it was obtained from that learned Judge; those circumstances amounting to fraud upon the Judge and collusion between the parties. A collusive suit is not a real judgment; but something obtained by fraud from the Court, which is not binding. This doctrine was laid down by Lord Hardwicke, in Thomas v. Ketteriche (a). It has been laid down in law and equity in reference to Ecclesiastical Cases, that collusion will make a nullity of a judgment, if it be between the parties. Now this case arises on a demurrer to an allegation; and it is said in argument by the Respondent, that if the facts, as pleaded in the allegation, were proved, it would not amount to a nullity of the sentence of Sir William Scott, as it does not show collusion. The collusion alleged, is supposed to be supported by the averments, that the husband withheld a witness, and that the wife did not produce such witness; that Elizabeth Penry, who ought to have been produced, was kept back; that no interrogatories were administered, and that there was no appeal. It appears to their Lordships that these circumstances are not suffi cient. It does not show collusion that the husband's father kept back a witness, it rather negatives collusion, nor was it necessary that a party should crossexamine; because if she knew that there was no case to defend, exhibiting interrogatories would be unnecessary. It appears to us that these facts, if proved, would be insufficient; that all the circumstances which would have given materiality were brought be (a) 1 Ves. Sen. 333. 1844. fore the Judge. Their Lordships do not think it necessary to go further than this particular case--they lay MEDDOWdown no new principle; but, upon the grounds stated, CROFT v. pronounce against this Appeal; and the allegation is, HUGUENIN. therefore, rejected with costs. THIS was a suit for substraction of church-rates brought by the Respondents, the Churchwardens of the parish of Hornchurch, against the Appellant, an inhabitant of the Chapelry of Romford, in the same parish; and arose under the following circum stances: 16th May 1844. By the sta tute 59 Geo. III., c. 134, enacted, that s. 14, it is it shall be lawful for By the statute 59 Geo. III., c. 134, s. 14, it is pro- the Churchvided, "That it shall be lawful for the Churchwardens * Present: Lord Brougham, the Vice-Chancellor Knight Bruce, the Right Hon. Dr. Lushington, and the Right Hon. T. Pemberton Leigh. wardens of with the consent of the vestry, to raise and bor row money upon the credit of the church-rates of any parish, for the purpose of defraying the expenses of any Church or Chapel. Held by the Judicial Committee of the Privy Council, (reversing the judgment of the Arches Court of Canterbury,) not to authorise Churchwardens to borrow money upon the credit of the church-rates, for repayment of a debt incurred in past years for repairs to the Church. 1844. PIGGOTT บ. BEARBLOCK. of any parish, with the consent of the vestry, or of the persons possessing the powers of vestry, and with the consent of the Bishop and Incumbent, to borrow and raise, upon the credit of the church-rates of any such parish, such sum or sums of money as shall be necessary for defraying the expense of repairing any churches or chapels; and they are thereby empowered and required, in any case in which such money shall have been borrowed, to raise by rate a sum sufficient from time to time to pay the interest of the money so borrowed, and not less than 10 per cent. of the principal sum borrowed, out of the produce of such rates, until the whole of the money so borrowed shall be repaid." In the year 1826 the parish church of Hornchurch, (a peculiar and exempt jurisdiction) having fallen into decay, the Churchwardens were authorised, at a vestry meeting, duly convened, to cause the church to be repaired, which they accordingly proceeded to do; but were unable immediately to raise, by means of the ordinary church-rates, a sum sufficient to pay the whole expenses of such repairs. At a vestry held on the 3rd July 1832, pursuant to notice, it was ordered that the Churchwardens should be authorised to borrow the sum of £350, under the authority of the above Act of Parliament, for the purpose of defraying the expenses so incurred. In pursuance of such directions, the Churchwardens applied to, and obtained the consent of, the Official and Commissary of the Peculiar, as the person exercising the functions and office of Bishop, in respect of the said jurisdiction, and likewise of the Incumbent of the parish, to such sum of £350 being raised upon the credit of the church-rates of the parish. The Churchwardens, however, obtained from the Rev. James Bearblock, the loan of that sum; the repayment thereof was secured by a deed, dated the 29th day of September 1832, to which the Churchwardens, the Commissary and Incumbent, for the time being, were respectively parties; whereby the church-rates and assessments of the said parish were, in pursuance of the said Act of the 33rd Geo. III., c. 136, granted, and assigned, and made payable, in satisfaction of the principal and interest on such loan, in manner and at the respective times appointed and authorised by the before-mentioned Act of Parliament. On the 29th of August 1839, and on the 22nd of October 1840, two several rates were made for repairing the parish church of Hornchurch, and for supplying the Churchwardens with necessary funds, to defray other incidental charges appertaining to their office for the then current year. These rates were duly confirmed; but the Appellant refused to pay the sum of three shillings and four pence, and five shillings, the amount of his respective assessments: the Churchwardens, therefore, brought the present suit, and Hornchurch, being a peculiar and exempt jurisdiction, the case was brought by Letters of Request from the Commissary thereof, procured out of the Arches Court of Canterbury. The Libel pleaded the making of the above rates, and the refusal of the Appellant to pay his assessments. The Appellant by his answer, pleaded, that the rates were null and void, for want of due notice of the vestries at which they were made; and he further pleaded that they were also void, not being made, as alleged, for and toward the repairing of the parish Church of the said parish, and for supplying the 1844. PIGGOTT 0. BEARBLOCK. 1844. PIGGOTT บ. BEARBLOCK. Churchwardens with necessary funds to defray the incidental charges for the current year only, but being in part retrospective, the Churchwardens having paid to the Rev. James Bearblock £85, part payment of the sum advanced by him many years since, and £6. 2s. 6d. interest thereon: and having used and intended to use such rate not solely for the necessary incidental expenses of the year of office of the said Churchwardens, but for other purposes; and in making other payments, therein set forth, which he submitted could not be legally charged on a church-rate. The Appellant, also, brought in an allegation, pleading, amongst other things, the same facts as were alleged in his answer, to which the Respondents replied, denying that the notices for the vestries at which the rates in question were made, were not duly made and given: but admitting that the rates were not made for or intended to be used to defray incidental charges only, but also to defray the repairs of the Church, and they submitted that the visitation expenses and sidesman's salary were amongst such incidental expenses, as having, as they the Respondents verily believed, from time immemorial, been always defrayed out of the church-rates, without any objection having ever been raised thereto. On the 11th day of January 1843, the learned Judge of the Arches Court, (Sir Herbert Jenner Fust) by an interlocutory decree, having the force and effect of a definitive sentence, pronounced that the libel had been sufficiently proved, and condemned the Appellant in the said sums of three shillings and fourpence, and five shillings, being the sums rated and assessed upon him, and sued for in the cause; with costs. |